10 Ill. App.2d 529 (1956)
135 N.E.2d 492
May Danhof, Plaintiff-Appellee,
v.
Harriet E. Osborne, d/b/a Duffy's Tavern, Co-Defendant-Appellant, Henry A. Buttell d/b/a Hank's Tavern, Co-Defendant-Appellant.
Gen. No. 10,901.
Illinois Appellate Court  Second District.
June 7, 1956.
Rehearing denied July 16, 1956.
Released for publication July 17, 1956.
*530 *531 *532 Bozeman, Moran & Klockau, of Moline, and Frank G. Schubert, of Springfield, for appellant; Bernard J. Moran, and Hubbard B. Neighbour, both of Moline, and Frank G. Schubert, of Springfield, of counsel.
Edward Zukosky, of Wenona, for appellee.
*533 JUSTICE CROW delivered the opinion of the court.
This is a suit under the Dram Shop Act, ch. 43, Ill. Rev. Stats. 1953, par. 135, for loss of means of support by May Danhof, wife of Cornelius P. Danhof, sometimes known as "Pelie" Danhof, against the defendants as owners and proprietors of two taverns in which she alleges her husband was sold or given alcoholic liquor and thereby became intoxicated. The action is for alleged injury in her means of support resulting "in consequence of the intoxication" of her husband. The jury returned a verdict for the plaintiff of $10,000. Judgment was entered thereon. The defendants appeal, after denial by the trial court of their motions for judgment notwithstanding the verdict, and for a new trial. During the course of the trial motions by the defendants for directed verdicts at the close of the plaintiff's evidence and at the close of all the evidence had also been denied. Four instructions were given for the plaintiff; thirty-one instructions were given for the two defendants; and no instructions tendered by the defendants were refused. On this appeal no questions are raised on the pleadings, the admission or exclusion of any evidence, or the instructions.
The amended complaint, in substance, alleged, so far as now material, that the defendants sold or gave alcoholic beverages to Danhof and three other patrons and caused their intoxication; that Danhof and those patrons, as a direct and proximate result thereof, engaged in a fight, scuffle, or drunken brawl with one Harold Morris; and that as a direct and proximate result thereof Danhof suffered certain personal injuries and has now become totally and permanently disabled. The defendants' answers, so far as now material, denied such allegations.
It is the theory of the defendants that (1) their motions for judgment notwithstanding the verdict should have been allowed because, as a matter of *534 law, the alleged injuries of Danhof and the consequent injury to the plaintiff wife in her means of support were caused by the independent, intervening, wilful, and wanton act of a third party, Harold Morris, the sole cause of the beating Danhof received was an affair he'd had with Vernetta Morris, wife of Harold, the injuries were not in any way related to the alleged intoxication of Danhof, were not a proximate result of any such intoxication, and hence were not in consequence of the intoxication within the meaning of the Dram Shop Act, and because, as a matter of law, the plaintiff wife was an active and willing agent in procuring her husband's injuries, thereby contributing to her own damages, and that she is not an innocent suitor under the Act; and (2) their motions, in the alternative, for a new trial should have been allowed because the verdict is contrary to the manifest weight of the evidence.
Although there are some conflicts in the evidence, which we shall endeavor to note and observe, it substantially appears therefrom that: May Danhof, the plaintiff, 48 years old, is the wife of Cornelius P. Danhof, and on February 24, 1954 (the date of the alleged injury), and prior thereto, Danhof was employed by the City of Lacon, as Chief of Police and maintenance man; his salary was $255 per month, and he contributed something like $200 per month for the support of his wife. Sometime prior to this date and for more than eleven months, he was acquainted with one Harold Morris and Vernetta Morris, his wife, 33 years old, also of Lacon. Mr. and Mrs. Danhof and Mr. and Mrs. Morris had been friends for some years. Danhof, for more than a year prior to the occasion in question, had carried on an affair with Vernetta Morris and had frequently engaged in sexual relations with her. May Danhof, the plaintiff, knew of the affair between her husband and Vernetta Morris and had protested *535 incessantly to him about it. Two days prior to February 24, 1954, the plaintiff had filed a Notice of Intention to obtain a divorce from Danhof in the Circuit Court of Marshall county; and on February 24th, she had put Danhof's clothes out on the porch of their home and had told him that after that day he'd have to get out. Harold Morris was living with his wife, Vernetta, and three children; he had had some reason to believe an affair was going on between his wife and Danhof; he had warned Danhof on a prior occasion to stay away from her or else something would happen, though he'd never threatened bodily harm to Danhof; and, strangely, Danhof and Morris apparently continued their friendly relations even after Morris' knowledge of Vernetta's and Danhof's conduct. Morris had assisted Danhof in his duties with the City of Lacon, and had borrowed money from Danhof after he had information about the affair. He had previously seen his wife with Danhof at "the tavern," though what tavern he did not say, and he admitted that he was unable to control her. Morris was 5' 5" tall, weighed 125 lbs., and was 34 years old; Danhof was 5' 7" tall, weighed 195 lbs., and was 51 years old. May Danhof had one artificial leg and the other leg bothered her at times. She had on one prior occasion taken Vernetta out in the country, beat up on her, and tried to explain to Vernetta what she was doing to the Danhof home and children.
On February 24, 1954, May Danhof, while driving in Lacon, saw her husband at Duffy's Tavern, operated by one of the defendants, between 5:30 and 6:00 in the evening, in company with Vernetta and certain other persons. After so seeing her husband, she had dinner, and thereafter drove by the Morris house about 7:00 p.m., talked to Harold Morris, and told him Danhof and Vernetta were going out together. Morris went to "the tavern," evidently Duffy's, to see if Danhof *536 and Vernetta were still there, and, not finding them, he came home. Later that evening the plaintiff went back to the Morris home; Morris suggested they might be in Chillicothe; it was both his and Mrs. Danhof's idea to go looking for Vernetta and Danhof; Mrs. Danhof had never gone looking for Danhof before; at his request she took Morris and Morris' 4-year-old daughter in her car to Chillicothe,  Morris said he was looking for Vernetta to bring her home,  he was not sure who she was with,  and they drove up to and stopped at Hank's Tavern, operated by the other defendant, at about 8:00 p.m.
As she drove up to the tavern, Danhof, her husband, and Vernetta Morris were in or were just preparing to get into Danhof's car. Morris jumped out of May Danhof's car before it fully stopped, she remaining in the car, and immediately ran toward his wife, saying: "I have caught up with you." He was very angry. Vernetta had stepped out of Danhof's car in the meantime. Before Morris caught up with Vernetta, Danhof got out of his car, tried to stop Morris, but could not, and said to Morris, in substance: "Let's talk it over  I was just going to take her home." Morris answered, in substance  "You have explained to me for the last time you ...," cursing him. Then Morris hit Danhof, but did not knock him down. Danhof stood, dazed, started to go, staggered a few steps, or stumbled, or tripped, and finally fell, hit his head on the side of the building, and went down. Vernetta and her sister, Mrs. Niles, say the plaintiff was out of her car and was urging Morris to strike Danhof, but the plaintiff denied that, and said she continued to remain in her car during the altercation. Danhof said the plaintiff made no statement of any kind, so far as he heard, the plaintiff says she said nothing, and Vernetta's and Mrs. Niles' testimony is the only evidence to the effect the plaintiff urged Morris to strike Danhof. Danhof says that he tried to throw up his hands when Morris *537 started to strike him, but he could not defend himself because he was too intoxicated. After Morris hit Danhof he again went after his wife, dragged her over to May Danhof's car, and tried to put her into it, but she escaped. Morris then hit one Martin, who, meanwhile, had come out of the tavern, with a rock and knocked him down twice. Then he returned to Danhof, who was lying near the corner of the building, and kicked him in the head and cursed him.
May Danhof then, with Morris, drove away in her car. She did not try to determine Danhof's condition at the moment, but drove around the block and on returning in about 5 minutes saw him sitting up, took the keys out of his car, and she then returned to Lacon. She testified on cross-examination "I never saw anyone so mad and so little to do so much as he did. In a space of five minutes, he knocked Floyd Martin down twice, drug his wife by the hair of her head to my car, and hit Pelie twice in the face." She also testified in a deposition as to the conduct of Morris after leaving the scene of the incident with her in her car to return to Lacon,  "He was real excited, and he was still mad, and he said he wished he had beat him up sooner. He wished he had listened to me sooner." She reported the incident to the Mayor of Lacon, Danhof's employer, and later went with the Mayor and his wife to see Danhof that evening at the hospital in Peoria and stayed until early morning. The occasion of February 24th was the first time either Morris or May Danhof had found Danhof and Vernetta together.
Dr. Frank Green examined Danhof between 8:00 and 10:00 p.m. that evening and determined that he should be hospitalized. He was conscious, but unable to talk or move his right arm and leg. His face was badly cut. He was suffering from a cerebral concussion, though he had no fractured skull. He was paralyzed on the right side. His injuries are permanent.
*538 The plaintiff and Morris testified that Danhof was drunk at the time, and so did Danhof, though some other witnesses said he was not intoxicated, the other witnesses who so testified being Vernetta's sister, Mrs. Niles, the man, Floyd Martin, whom she was with, Vernetta (all of whom had been with or around Danhof during the late afternoon and early evening, and all of whom had been doing some drinking themselves), the bartender at one of the defendants' taverns, and another patron at Hank's Tavern. Danhof testified that he drank 20 beers and 5 glasses of whisky at Duffy's Tavern that afternoon and evening between 3 to 4:30 p.m. and 5 to 6 p.m.; Vernetta, her sister, Mrs. Niles, and Floyd Martin were there; others said he had less to drink, but there is no dispute but that he was served some alcoholic liquor; Vernetta had left Duffy's Tavern about 5:30 p.m., had gone home, and had prepared dinner for her husband and children; Danhof evidently left Duffy's Tavern later, picked up Vernetta, who had told her husband she was going out to make some arrangements about attending someone's funeral, and, with her, he arrived at Hank's Tavern at about 7:30 in the evening; Vernetta's sister, Mrs. Niles, a young daughter of Mrs. Niles, and Floyd Martin accompanied Danhof and Vernetta, in another car, to Hank's Tavern; and Danhof said he drank 6 junior beers at Hank's Tavern. Others, however, again said he had less than that to drink at Hank's but, here also, there is no dispute but that he had there been served some alcoholic liquor.
Danhof and Vernetta generally met in "a tavern" during the period they had been running around together. Danhof and Vernetta had been together, with Mrs. Niles and Martin, at Hank's Tavern, at least, on other prior occasions. Floyd Martin, who had been with Mrs. Niles, Vernetta's sister, and in the company of Danhof and Vernetta, in Duffy's and Hank's Taverns, *539 was employed as a part time bartender at Duffy's. The fact that Danhof and Vernetta were seeing each other had been mentioned to the proprietor of Duffy's, though she said she did not believe it. Danhof was also known by the proprietor of Hank's Tavern; he had been there before; and the bartender at Hank's knew Danhof, Vernetta, Mrs. Niles, and Martin.
[1] The first real issues seem to be whether the injury to the plaintiff in her means of support was "in consequence of the intoxication," i.e., whether Danhof's intoxication was a proximate cause of his being hurt and disabled and the plaintiff being so injured in her means of support: Whiteside v. O'Connors (1911) 162 Ill. App. 108; Hill v. Alexander (1944) 321 Ill. App. 406. Where the action is for an injury allegedly resulting "in consequence of the intoxication" of any person, the intoxication must be a proximate cause of the injury; the defendant need not, however, have foreseen the precise injury which results; also, the intoxication need not be the sole cause, or the last or nearest cause; it is sufficient as a proximate cause if it concurs with some other cause acting at the same time, which in combination with it causes the injury; but the injury must be a natural and probable consequence of the intoxication and be of such a character as an ordinarily prudent person ought to foresee might probably occur as a result of the intoxication: Whiteside v. O'Connors, supra; Economy Auto Ins. Co. v. Brown (1948) 334 Ill. App. 579. It is not the intention of the Dram Shop Act that the liquor alone, of itself, exclusive of other agency, should do the whole injury: Schroder v. Crawford (1880) 94 Ill. 357.
[2-5] The question presented by the defendants' motions for judgment notwithstanding the verdict, therefore, is the rather narrow one of whether there is any competent evidence, together with all reasonable inferences to be drawn therefrom, standing alone, taken *540 with all its intendments most favorably to the plaintiff, tending to prove, and from which the jury might reasonably find, that the plaintiff was injured in her means of support "in consequence of the intoxication" of her husband Danhof, as a proximate result of his intoxication. On such motions we are not concerned with the weight or credibility of the evidence. Reasonable inferences may be drawn by a jury from established facts; a verdict may not be set aside merely because the jury could have drawn different inferences from the evidence; and if there be a competent evidentiary basis for their verdict the jury may disregard or disbelieve alleged facts inconsistent with their conclusion. Only where there is a complete absence of probative facts to support the conclusion drawn by the jury is it reversible error to overrule a motion for judgment notwithstanding the verdict: Lindroth v. Walgreen Co. (1950) 407 Ill. 121; the principles applicable on such a motion are the same as on a motion for a directed verdict, and are well settled: Neering v. Illinois Cent. R. Co. (1943) 383 Ill. 366; Blumb v. Getz (1937) 366 Ill. 273.
[6-9] What is the proximate cause of an injury is ordinarily a question of fact, to be determined by the jury from a consideration of all the evidence and attending circumstances,  it can arise as a question of law only when the facts are not only undisputed but are also such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn from the facts; if it could have been foreseen by the exercise of ordinary care that some injury might or would result from an act, that act is a proximate cause of the injury: Phillabaum v. Lake Erie & W.R. Co. (1924) 315 Ill. 131. An intervening, efficient cause is a new and independent force, the intervention of which was not probable or foreseeable by the first wrongdoer, which breaks the causal connection between *541 the original wrong and the injury and itself becomes the direct and immediate cause of the injury: Phillabaum v. Lake Erie & W.R. Co., supra; Neering v. Illinois Cent. R. Co., supra. An injury, to permit recovery, must be a natural and probable result of the act or omission involved and such as an ordinarily prudent person ought to have foreseen as likely to occur, although it is not essential the defendant should have foreseen the precise injury which resulted, and what is the proximate cause of an injury is ordinarily a question of fact to be determined by the jury: Neering v. Illinois Cent. R. Co., supra (an abnormal criminal act of assault of a third person who had no connection with the defendant railroad was not an intervening, efficient cause, under the circumstances, breaking the chain of causation). The intervention of an independent, concurrent, or intervening force will not break causal connection if the intervention of such force was itself probable or foreseeable, and in such a case the earlier act, if it contributed to the injury, may be regarded as a proximate cause: Neering v. Illinois Cent. R. Co., supra; O'Brien v. Musfeldt (1951) 345 Ill. App. 12.
In Emory v. Addis (1874) 71 Ill. 273, a dramshop case, the Court held a plaintiff wife could recover damages for injury to her means of support where her husband had become intoxicated and nothing was known as to what happened except that he was found the next morning on a railroad track, evidently run over by a train, and the Court observed that, pp. 276, 277: "... but for the intoxication he would, in all probability, be living today.... No doubt had he been sober he would have gone home with the witness, Bartells, and this fearful calamity would not have happened.... He who deliberately sells that which he knows will inflame the passions, deprive the party of the control of his judgment, and render him, for *542 the time being, incapable of exercising proper care for personal safety, or that of his property, must be prepared for the consequences that may follow." (Emphasis added.)
In Smith et al. v. People (1892) 141 Ill. 447, in a suit on a dramshop keeper's bond for the use of the plaintiff widow the Court held she could recover where the husband had become intoxicated, could not properly and safely manage and drive his team of horses, they ran away, he had been thrown from the wagon, and was killed. The Court said, pp. 452-453:
"... So, also, if, notwithstanding the intoxication of the deceased, he would not have been killed if his horses had not run away, yet nevertheless there would be a good cause of action. The very gravamen of the case is, that he, in consequence of his intoxication, was unable to properly manage and control his team, and that in consequence thereof they ran away, and he was thrown out of the wagon and killed. ...
"Instruction No. 3 was properly refused, and for like reason. Even if the clips or fastenings on the whiffle-trees dropped off and allowed the tongue of the wagon to drop down upon the road, and in consequence the team became frightened and unmanageable, and ran away, yet, non constat, that if the deceased had been duly sober and in fit condition to manage and control the team he would not have been able to prevent the running away of the horses or the overturning of the wagon." (Emphasis added.)
In Greenacre v. Filby (1916) 276 Ill. 294, a dramshop suit, the plaintiff widow recovered for injury to her means of support where her husband had become intoxicated and was later found on a railroad track, run over by a train. The Court, in part, said, p. 296:
"The questions of fact in dispute at the trial were whether Greenacre was so intoxicated as to be unable to exercise care and caution for his own safety, and *543 whether he was on the track in consequence of such intoxication or went upon the track with the intention of committing suicide." (Emphasis added.)
In Haw v. 1933 Grill, Inc. (1938) 297 Ill. App. 37, an action under the Dram Shop Act, the Court held a plaintiff wife could recover damages for injury to her means of support where her husband became intoxicated at a tavern, noisy, and boisterous, as he had done at that tavern several times before, and a sober third party, one of the tavern agents or managers, struck and injured the husband in attempting to eject him, and it was immaterial whether the third party's act was wilful or accidental, for the intoxication of the husband was a contributing factor and a proximate cause of the injury. The defendant must, under the circumstances, be presumed to have foreseen that its act of selling the liquor might have produced or been followed by the altercation in which the husband was injured, it not being necessary that the defendant should have foreseen the actual result, it being sufficient that such a result might reasonably occur, and the injury was not the result of a so-called independent, intervening cause, namely, an assault by a sober third person, because the defendant might reasonably have anticipated such a consequence as this injury as a result of the intoxication.
In Cross v. Ryan, 124 F.2d 883 (CCA 7th, 1941), the Court held a plaintiff widow and her children could recover under the Dram Shop Act where the husband, Cross, had become intoxicated, had assaulted one Stout, Stout had then assaulted Cross, and Cross, because of his intoxication, was unable to defend himself and was injured. The act of Stout, the assailant, was not an intervening, independent cause; the causal chain was not broken merely because the actual injury was inflicted by Stout, a person not intoxicated, assuming Stout was not intoxicated. The Court said, pp. 886-7: *544 "As to the cause of action set up in counts 1, 4, 7, and 10: In these counts it is charged that the defendant sold intoxicating liquor to George Cross, the husband and father of the plaintiffs, as a result of which he became intoxicated, assaulted and abused George Stout, who in turn by reason of the drunken assault of Cross, assaulted Cross, who, because of his intoxication, was unable to defend himself, and was thereby injured, from which injuries he died. The defendant-appellant argues that because it was not alleged that Stout was intoxicated by liquor sold him by the defendant and as a result thereof he assaulted and beat Cross to death, that Stout was the intervening responsible cause of the injury to Cross, and not the sale of intoxicating liquor to Cross by the defendant.
"We think each of the counts states a cause of action. The statute clearly provides that if the wife and children shall be injured in their means of support in consequence of the intoxication of any person, they shall have a right of action against any person who sold or gave the intoxicating liquor which caused the intoxication of such person, in whole or in part.
"The allegations of these counts as we have above outlined them come clearly within the provisions of the statute, and allege the causal connection between the sale of the liquor and the intoxication, and the injury and the death. Haw v. 1933 Grill, Inc., 297 Ill. App. 37, 17 N.E.2d 70." (Emphasis added.)
In Arington v. Phelps, 79 F. Supp. 295 (D.C.E.D. Ill. 1948), the Court followed Cross v. Ryan, supra, referred to Schroder v. Crawford, supra, Haw v. 1933 Grill, Inc., supra, said that the prevailing judicial authority seems to be that the Dram Shop Act is remedial and should be so construed as to suppress the mischief involved and advance the remedy provided by the statute, and that the Illinois Courts do not follow in dramshop suits the strict rules of proximate cause abiding in ordinary negligence actions.
*545 In Casey v. Burns (1955) 7 Ill. App.2d 316 we recently had occasion to examine some of the foregoing cases. That also was a dramshop suit involving an altercation or assault. We held the plaintiff wife could recover and there was no error in denying the defendant's motions for directed verdicts and for judgment notwithstanding the verdict. The husband had become intoxicated at the defendant's tavern, was found later that evening at the rear of the tavern, beat up, and there was evidence the defendant's bartender had struck the husband with a blackjack. We held there was competent evidence the plaintiff had been injured in her means of support in consequence of the intoxication of her husband, as a proximate result of such intoxication, and that the question of proximate cause was properly a question of fact to be determined by the jury from a consideration of all the evidence and attending circumstances, and was not a pure question of law.
[10] We think there was competent evidence, together with all reasonable inferences to be drawn therefrom, standing alone, taken with all its intendments most favorably to the plaintiff, tending to prove, and from which the jury might reasonably find, that the plaintiff was injured in her means of support "in consequence of the intoxication" of her husband Danhof, as a proximate result of his intoxication. The injury here incurred is not an unnatural or improbable consequence of the intoxication and is of such a character as an ordinarily prudent person in the position of the defendant tavern operators ought to have foreseen might probably occur as a result, in whole or in part, of the intoxication. Proximate cause here is not a pure question of law only. Some of the facts are disputed, and so far as they are undisputed there can be a difference in the judgment of reasonable men as to the inferences to be drawn therefrom. Proximate cause here is, as it ordinarily is, a question of fact to be determined *546 by the jury from a consideration of all the evidence and attending circumstances. The inference and result reached by the jury is not unreasonable. That the jury might have drawn different inferences and reached a different result is no justification for setting the verdict aside.
[11] The Dram Shop Act is remedial in character and should be so construed as to suppress the mischief involved and advance the remedy provided by the statute. That the defendants may not have foreseen the precise injury which here resulted is not significant. It is not the intention of the statute that the liquor alone, of itself, exclusive of some other agency, should do the whole injury. The intoxication of Danhof may not have been, and probably was not, the sole cause of the injury. It may not have been the last or nearest cause. But it certainly at least concurred with another, or other cause,  the Danhof-Vernetta affair and its ramifications and the Morris assault,  acting at the same time, and in combination therewith caused the injury.
The defendants having sold that which they knew would inflame the passions of Danhof, deprive him of the control of his judgment, and render him, for the time being, incapable of exercising proper care for his personal safety, must be prepared for the consequences that may follow. Danhof, in consequence of his intoxication, was evidently unable properly to manage, control, and defend himself,  he said so himself,  and, in at least partial consequence thereof, he suffered his injuries and the plaintiff suffered her injury. Had he been sober he might not have been with Vernetta at all, or he might not have been at the place where and at the time when the incident occurred. Or, had he been sober and in fit condition to manage, control, and defend himself he might have been able fully or better to defend himself and to prevent or greatly minimize *547 the assault of Morris, keeping in mind particularly that Danhof weighed considerably more than Morris and was somewhat taller, though older.
The jury may well have inferred and found that Danhof was so intoxicated as to be unable to exercise due care and caution for his own safety. Danhof's getting out of his car, in the first instance, as Morris came up to Hank's Tavern, trying unsuccessfully to stop Morris, and trying to talk with Morris and make some feeble excuse for having Vernetta with him, may, under the circumstances, considering the unenviable position Danhof was in, have well been a failure to exercise due care and caution for his own safety,  acts which perhaps he or any prudent person in a state of sobriety, rather than inebriety, might not have done, and if he'd stayed in the car, kept quiet, and not perhaps have irritated Morris any further, it is at least possible none of the subsequent injuries he suffered would have occurred.
Further, Morris' blows to Danhof's face did not knock him down; he remained standing, dazed (doubtless partly because of the blows and partly because of his intoxication), started to go, staggered, stumbled, or tripped, and finally fell, hitting his head on the side of the building. To what exact extent that staggering, stumbling, tripping, falling, and hitting his head on the building were due to intoxication, and to what extent those acts were due to Morris' original blows is, of course, impossible to say, and it is unnecessary to know, but certainly to some reasonable extent, and perhaps a substantial extent, those acts were due to Danhof's intoxication and the jury may well have so felt. That some of those actions were, undoubtedly, due to Morris' blows is not significant when the intoxication of Danhof was a concurrent, combined, proximate cause.
*548 Danhof and Vernetta were both known at both of the defendants' taverns. They were not just complete strangers coming in for a few drinks. The evidence, together with such reasonable inferences and implications as might have been drawn by the jury therefrom, is sufficient to indicate that they were known by the defendants or their agents to be seeing each other and running around together, though not married to each other, and though married each to someone else. There was at least sufficient known to the defendants to put them on notice of a very delicate, if not a potentially dangerous and explosive, situation, concerning the domestic-marital affairs of the Danhof and Morris families, which a reasonable degree of prudence would seem to indicate ought not to be irritated, enhanced, inflamed, or encouraged. Under those circumstances, particularly, prudence would seem to indicate the defendants should have been more than usually careful and discreet in the dispensing of intoxicating liquor to Danhof.
Under the circumstances here it cannot be said that, as a matter of law, the sole cause of Danhof's personal injuries and the plaintiff's injury in her means of support was the Danhof-Vernetta affair and that the injuries were in no way related to Danhof's intoxication. That affair undoubtedly played its part, an important part, in the drama later developed at Hank's Tavern. But intoxicating liquor consumed by Danhof also played its part, also important. They were doubtless both causes of the resultant injuries, and not mutually exclusive causes. To be a proximate cause, and for it to be possible for the jury to so find, the intoxication need not be the sole cause, or even the last or nearest cause. As long as the intoxication of Danhof concurred with the Danhof-Vernetta affair, acting at the same time, and in combination therewith caused the injuries, it is a proximate cause.
*549 Nor, as a matter of law, was the sole cause of Danhof's personal injuries and the plaintiff's injury in her means of support the assault of Morris upon Danhof. The fact that Morris, a sober third party, did strike Danhof, the intoxicated person, does not exempt the defendants, and such does not constitute an independent, intervening efficient cause eliminating the intoxication of Danhof as a proximate cause. That assault did not break all causal connection between Danhof's intoxication and the injuries. That force was itself probable or foreseeable under the circumstances. The assault, with its background in the Danhof-Vernetta affair, combined with Danhof's intoxication and, in concurrence therewith, caused the injuries. Danhof's intoxication continued in part, greater or lesser, to contribute to the injuries and to be a contributing factor and a possible proximate cause, though not necessarily the only cause. The principal cases the defendants refer to on this are Shugart v. Egan (1876) 83 Ill. 56, and Schmidt v. Mitchell (1876) 84 Ill. 195. We do not believe them to be inconsistent with our views, when considered in the light of their particular facts, and also when the other and later cases referred to above are considered. They were each decided but a short while after the adoption of the original Dram Shop Act of 1874. Neither case cites any dramshop case precedents directly in point. The opinion in Shugart v. Egan was the second opinion in the case, after a rehearing had been allowed, and reached the opposite conclusion from the first opinion,  indicating the Court was not altogether sure as to the construction of the then new Act. Schmidt v. Mitchell, though decided at the same term, does not refer to Shugart v. Egan, and in the Schmidt case, after the intoxicated person had received a gunshot wound in the leg, he, against medical advice, and while sober, had walked upon his leg, it became worse, was later amputated *550 (perhaps unnecessarily), and three hours after the amputation the person died, some several days after the original wound. The Court observed in Arington v. Phelps, supra, for example, as to the Shugart v. Egan case, that though it has not been expressly overruled it has lost its compelling force as authority because of the later decisions,  most of which we've set out above.
In their reply brief the defendants for the first time state a wholly new point, not stated in their original brief, to the effect that Danhof's intoxication, if any, was only a condition which made an injury possible, which condition was not concurrent with the subsequent assault of Morris, and the mere existence of the condition was not a proximate cause of the injury, and they cite nine altogether new cases, not cited (with one exception) in their original brief. Under the circumstances the plaintiff has had no opportunity to respond to that point or those cases, and we do not have the benefit of the plaintiff's views. None of the cases there cited apparently are dramshop cases, except one, Whiteside v. O'Connors (1911) 162 Ill. App. 108, and in that case a judgment for the defendants was reversed and remanded. We do not believe the point or the cases applicable to this dramshop case, except Whiteside v. O'Connors, and it is not favorable to the defendants.
[12-14] The second real issue seems to be whether, as a matter of law, the plaintiff wife was an active and willing agent in procuring Danhof's injuries, thereby contributing to her own damages, and whether she is an innocent suitor under the Dram Shop Act. It is, of course, true, as the defendants point out, that if a plaintiff wife could have deprived the husband of the liquor by breaking the jug, or throwing out its contents, and does not do so, she is a willing party to his conduct and cannot recover: Reget v. Bell (1875) 77 Ill. 593; *551 or if the injured person is an active and persistent agent, with the tavernkeeper, or alone, in causing the intoxication of his later assailant or the person who injures him, he cannot recover: Hays v. Waite (1890) 36 Ill. App. 397, and Pearson v. Renfro (1943) 320 Ill. App. 202; nor can one recover who is not innocent, i.e., one who is in a party the members of which have been drinking, who has been drinking herself, and is a participant in the intoxication of a person who later injures her: James v. Wicker (1941) 309 Ill. App. 397; nor can the plaintiff who has herself bought the liquor and become intoxicated recover for her own injuries: Buntin v. Hutton (1917) 206 Ill. App. 194. But in the present case the plaintiff May Danhof did not purchase or procure any of the intoxicating liquor at Duffy's or Hank's for Danhof, or participate therein, or have anything whatever to do with such. There is no evidence she urged Morris to strike Danhof except Vernetta's and Mrs. Niles' testimony, which the plaintiff and Danhof both denied, and it was for the jury to decide whom to believe. True, she told Morris that Danhof and Vernetta were going out together, she drove Morris and his daughter to Hank's Tavern, she did not try to determine Danhof's condition immediately after the altercation, and she drove Morris and his daughter back to Lacon. But there is no evidence of any predetermined plan or conspiracy or even conversation between her and Morris that he should assault Danhof; it was Morris' suggestion that they might be in Chillicothe, and it was at Morris' request that she drove to Hank's Tavern; they were evidently simply looking for Danhof and Vernetta, something she'd never done before; and Morris had said he was looking for Vernetta to bring her home; she remained in the car during the altercation, saying nothing (unless Vernetta's and Mrs. Niles' testimony to the contrary was to be believed); within a few minutes *552 after the altercation she returned to the scene and saw Danhof sitting up; she reported the incident to Danhof's employer; and she went to the hospital that night and stayed until early morning. We cannot say, as a matter of law, that the plaintiff was an active and willing agent in procuring Danhof's injuries or is not an innocent suitor. There was no burden of proof on her in those respects: Darby v. Donahue (1954) 3 Ill. App.2d 112. It was a question for the jury to decide: Lester v. Bugni (1942) 316 Ill. App. 19.
Accordingly, there was no error in denying the defendants' motions for judgment notwithstanding the verdict. The trial court, having the additional benefit of an opportunity to observe the conduct and demeanor of the witnesses, had these same questions before it on these motions and on the prior motions for directed verdicts, and concluded the same should be denied and that it was a proper jury case. We concur.
[15, 16] The foregoing will be sufficient, in substance, to indicate our belief that there was also no error in denying the defendants' motions for a new trial. The determination of the weight and sufficiency of the evidence is a fact function for the jury. They must determine the credibility of the witnesses and whom to believe where there is a disputed fact question, and there were some here. They may and must make reasonable inferences and conclusions from the evidence. It is not our function to sit as a trier of the facts, to weigh the evidence as an original matter, or as a matter of initial or first impression, and make a determination ab origine. Only in those instances where we believe a verdict to be contrary to the manifest weight of the evidence may we reverse on this ground. The matter of whether Danhof was intoxicated or not was primarily and typically a jury question of fact, there being evidence to that effect: Watkins v. Gaertner (1952) 348 Ill. App. 125. The jury in the *553 first instance, and the trial judge in passing on this motion, having an opportunity to observe the witnesses, their conduct and demeanor, and determine the weight of the evidence therefrom as well as from the spoken words themselves, felt the preponderance of the evidence here lay with the plaintiff. We cannot say their determination is contrary to the manifest weight of the evidence. The jury was amply instructed. The defendants' theories of the case were ably presented, and they have had a fair trial.
Accordingly, the judgment will be affirmed.
Affirmed.
DOVE, P.J. and EOVALDI, J., concur.


            United States Court of Appeals
                        For the First Circuit

No. 15-1059

                           KIM PHILIBOTTE,

                        Plaintiff, Appellant,

                                  v.

     NISOURCE CORPORATE SERVICES COMPANY, d/b/a Nisource Services
     Inc., d/b/a Bay State Gas Company, d/b/a Northern Utilities,
    Inc., d/b/a Columbia Gas of Massachusetts; AGL RESOURCES INC.,
       d/b/a Nicor Energy Services Company, d/b/a Columbia Home
                              Solutions,

                        Defendants, Appellees.

             APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Mark G. Mastroianni, U.S. District Judge]

                                Before

                         Howard, Chief Judge,
                   Selya and Lynch, Circuit Judges.

     Valeriano Diviacchi, with whom Diviacchi Law Office was on
brief, for appellant.
     J. Christopher Allen, Jr., with whom Troy K. Lieberman and
Nixon Peabody LLP were on brief, for appellee.

July 16, 2015

            LYNCH, Circuit Judge.         This suit, about a water heater,

concerns the appropriate standard for determining when consumer

transactions styled as "leases" are in fact disguised "credit

sales" or "retail installment sales."           If so, they are subject to

disclosure requirements under federal and Massachusetts' consumer

protection laws.        See Truth in Lending Act ("TILA"), 15 U.S.C.

§ 1601 et seq.; Massachusetts Consumer Credit Cost Disclosure Act

("CCCDA"), Mass. Gen. Laws ch. 140D, § 1 et seq.; Massachusetts

Retail Installment Sales and Services Act ("RISSA"), Mass. Gen.

Laws ch. 255D, § 1 et seq.

            Plaintiff Kim Philibotte alleges that the defendants,

Nisource    Corporate    Services    Company     and   AGL   Resources,   Inc.

(collectively "Nisource"), engaged in deceptive business practices

by disguising credit sales of hot water heaters as leases to avoid

making the required disclosures.             The district court found that

Philibotte did not qualify for protection in light of the state-

law standards governing these transactions, and dismissed her

suit.      The district court reasoned that the decision of the

Massachusetts Supreme Judicial Court ("SJC") in Silva v. Rent-a-

Center,    Inc.,   912    N.E.2d    945   (Mass.   2009),    which   controls

Philibotte's RISSA claim, also controls both her federal and state

TILA claims in light of the similarity of the RISSA and the CCCDA

(Massachusetts' TILA), which governs the applicable standard for

both Philibotte's state and federal TILA claims under an exemption

                                     - 3 -
granted to Massachusetts.                                         See Belini v. Wash. Mut. Bank, FA, 412

F.3d 17, 20 (1st Cir. 2005) (explaining that Massachusetts has

been granted an exemption that displaces "federal [TILA] law in

favor of state [TILA] law"); see also 15 U.S.C. § 1633; 12 C.F.R.

§ 226.29(b)(2).

                             We affirm on alternate grounds.                        Philibotte's federal

claim under TILA, 15 U.S.C. § 1640, is barred by the statute of

limitations.1 As to the pendent state law claims, which are timely,

we affirm dismissal for failure to state a claim.                                          We agree that

Silva controls Philibotte's RISSA claim, but apply the plain

statutory language to resolve her CCCDA claim on narrower grounds.

                                                                       I.

                             "Because [Philibotte] challenge[s] the district court's

dismissal of [her] claims under Fed. R. Civ. P. 12(b)(6), we

[briefly] recite the facts and reasonable inferences raised by the

facts in [her] favor."                                         Salois v. Dime Sav. Bank of N.Y., FSB, 128

F.3d 20, 22 (1st Cir. 1997).2

              1
        The district court reached the merits, but also held, in
the alternative, that Philibotte's federal claim was barred by the
statute of limitations. Unlike the district court, we do not reach
the merits of this claim.
      2 These facts are taken from the redacted amended complaint,

the sealed portions being irrelevant to our resolution of this
case.
      Philibotte also appealed the district court's order from
December 22, 2014, denying her motion to unseal the complaint and
the amended complaint.
      We review the district court's order for abuse of discretion.
See Siedle v. Putnam Invs., Inc., 147 F.3d 7, 10 (1st Cir. 1998)

                                                                     - 4 -
                             In January 2011, Philibotte's hot water heater at her

home in Chicopee, Massachusetts, stopped working.                                        She contacted

Columbia Gas, allegedly a Nisource entity,3 whose agents evaluated

her water heater and told her that the "best and cheapest way to

proceed" would be to "lease" a new Ruud water heater for $204,

made in twelve monthly payments of $17.                                          They gave her such a

lease, which she signed.                                       Philibotte alleges that the agents never

explained the terms of the lease, provided her with any TILA

disclosures, or informed her that the full retail market value of

the heater (including installation) was only $400 to $500.

("The trial court enjoys considerable leeway in making decisions
of this sort.").     The crux of Philibotte's argument is that
Nisource did not present, and the district court did not consider,
"any independent basis other tha[n] the state court impoundment."
"[A]lthough the scales tilt decidedly toward transparency," we
cannot say the district court abused its discretion to keep under
seal portions of the complaint that were filed in direct
contravention of a state court order. See Nat'l Org. for Marriage
v. McKee, 649 F.3d 34, 70 (1st Cir. 2011). The "presumptive right
of access attaches to those materials 'which properly come before
the court,'" and we will not permit litigants to abuse this right
to circumvent state court procedures aimed at curbing discovery
abuse. See In re Providence Journal Co., 293 F.3d 1, 9 (1st Cir.
2002) (emphasis added) (quoting F.T.C. v. Standard Fin. Mgmt.
Corp., 830 F.2d 404, 412-13 (1st Cir. 1987)); cf. Nixon v. Warner
Commc'ns, Inc., 435 U.S. 589, 598 (1978) ("Every court has
supervisory power over its own records and files, and access has
been denied where court files might have become a vehicle for
improper purposes.").
     3 We need not resolve a dispute over the relationship between

these entities in light of our holding. See Philibotte v. Nisource
Corp. Servs. Co., No. 14-11300, 2014 WL 6968441, at *1 n.1 (D.
Mass. Dec. 9, 2014).

                                                                   - 5 -
              The lease, which was attached to the complaint, carried

a minimum term of twelve months, after which either party could

terminate the lease without penalty on 30 days written notice.              It

also included a buyout option that could be exercised at any time.

The buyout price varied depending on how many monthly payments had

been made to date, decreasing over time to a minimum of $75.               The

lease   did    not   require   Philibotte    to   return   the   heater   upon

termination, unless demanded, and the parties dispute whether the

transaction contemplates such a return.

              Neither Philibotte nor Columbia Gas terminated the lease

upon completion of the minimum term in January 2012.              Philibotte

continued to lease the heater for two more years, until February

2014, when she contacted Columbia Gas to exercise her option to

purchase.     She alleges that Columbia Gas's response to her request

"ma[de] all sorts of misrepresentations and waivers" to disguise

the fact that this was the culmination of a disguised credit sale.

Despite     these,    she   signed    the    required      "appliance     sales

agreement," under which she paid an amount roughly equivalent to

the lease's buyout price.

              Philibotte filed this putative class action against

Nisource in March 2014.        She alleged three disclosure violations

under both federal and state law: (1) a federal claim under TILA,

15 U.S.C. § 1601 et seq.; (2) a state law claim under the RISSA,

Mass. Gen. Laws ch. 255D, § 1 et seq.; and (3) a state law claim

                                     - 6 -
under the CCCDA, Mass. Gen. Laws ch. 140D, § 1 et seq.                                             She also

brought an unjust enrichment claim and a Massachusetts 93A claim

based on the alleged mischaracterization of the transaction as a

"lease."                      The complaint sought, inter alia, class certification,

compensatory and statutory damages, and equitable relief including

rescission.

                             The district court found that the transaction did not

qualify for protection under the standard for identifying consumer

leases subject to RISSA protection that was articulated by the SJC

in Silva v. Rent-a-Center, Inc., 912 N.E.2d 945 (Mass. 2009).                                           See

Philibotte v. Nisource Corp. Servs. Co., No. 14-11300, 2014 WL

6968441, at *3-6 (D. Mass. Dec. 9, 2014).                                         The district court also

found                that              the             same    standard     applied,   and   so   precluded,

Philibotte's federal TILA and Massachusetts CCCDA claims.                                               Id.

Accordingly, the court granted Nisource's motion to dismiss.                                            Id.

at *6.

                                                                     II.

                             The district court had jurisdiction over Philibotte's

federal TILA claim pursuant to 28 U.S.C. § 1331, and supplemental

jurisdiction under 28 U.S.C. § 1367 over the state law claims.4

See Belini, 412 F.3d at 19-20.                                             We have jurisdiction under 28

U.S.C. § 1291.

              4
       It is not clear whether there is also diversity jurisdiction
over the state law claims in addition to supplemental jurisdiction,

                                                                    - 7 -
                                                                          III.

                             Our review is de novo.                              Palmer v. Champion Mortg., 465

F.3d 24, 27 (1st Cir. 2006).                                             We are not bound to the reasoning of

the district court, but "may affirm on any basis apparent in the

record."                     Debnam v. FedEx Home Delivery, 766 F.3d 93, 96 (1st Cir.

2014) (quoting Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 237

n.11 (1st Cir. 2013)).                                              In so doing, we must draw all reasonable

factual                   inferences                           in   Philibotte's     favor,   but   "refrain   from

crediting her 'bald assertions, unsupportable conclusions, and

opprobrious epithets.'"                                             Palmer, 465 F.3d at 28 (quoting Chongris

v. Bd. of Appeals, 811 F.2d 36, 37 (1st Cir. 1987)).                                                       We begin

with the federal claim.

                             Philibotte's federal TILA claim is time-barred unless

brought within the one-year statute of limitations.                                                       15 U.S.C.

§ 1640(e); McKenna v. Wells Fargo Bank, N.A., 693 F.3d 207, 211

(1st Cir. 2012) (noting that the federal statute of limitations

applies                  to          the           federal           claim,   even    where   a   state   exemption

applies); see also Belini, 412 F.3d at 26.                                               This period runs "from

the date of the occurrence of the violation," 15 U.S.C. § 1640(e),

and the district court did not address the issue. Even assuming
there is not diversity jurisdiction, the facts fail to give rise
to a claim under state law without implicating substantive
questions of state law. Accordingly, we cannot say the district
court would have abused its discretion had it exercised
supplemental jurisdiction for the convenience of the parties after
dismissal of the federal claim. Cf. Desjardins v. Willard, 777
F.3d 43, 45 (1st Cir. 2015).

                                                                         - 8 -
which for disclosure violations in credit sales is the date the

transaction was consummated.                                           See, e.g., King v. California, 784

F.2d 910, 915 (9th Cir. 1986); Evans v. Rudy-Luther Toyota, Inc.,

39 F. Supp. 2d 1177, 1184 (D. Minn. 1999) (citing Dryden v. Lou

Budke's Arrow Fin. Co., 630 F.2d 641, 646 (8th Cir. 1980)). Absent

equitable tolling, the statute of limitations ran in January 2012,

one year after Philibotte entered into the lease agreement.                                               Suit

was not brought until March 2014.

                             Philibotte argues that equitable tolling applies because

Nisource misrepresented the agreement to be a "lease" and engaged

in active deception to hide the true nature of the lease as a

credit sale.5                              But "[i]n this case, the inquiry is over before it

begins."                     Salois, 128 F.3d at 26.

                             To         warrant                equitable   tolling   under   the   doctrine   of

fraudulent concealment, a plaintiff must "exercise reasonable

diligence in discovering that [she] ha[s] been the victim[] of

fraud."                   Id. ("[A]lthough . . . reasonable diligence is factually

based, it may be determined as a matter of law where the underlying

              5
       Although the district court ruled, in the alternative, that
the statute of limitations barred Philibotte's federal claim, the
district court did not expressly address equitable tolling in its
decision. Cf. Jardín de las Catalinas Ltd. P'ship v. Joyner, 766
F.3d 127, 135 (1st Cir. 2014) (noting that rejection of equitable
tolling is reviewed for abuse of discretion against the "background
precepts that [it] is available only in exceptional circumstances"
(quoting Neverson v. Farquharson, 366 F.3d 32, 40 (1st Cir. 2004))
(internal quotation marks omitted)).

                                                                      - 9 -
facts              are           admitted                      or    established          without    dispute.").      Even

accepting all facts as alleged, Philibotte failed to exercise this

diligence as a matter of law, and so does not warrant relief.                                                          See

id.           The lease here "contained all of the information necessary to

determine"                        that             it          might    be     a    disguised        credit   sale.    Id.

Accordingly, "sufficient facts -- indeed, all the facts -- were

available to place [Philibotte] on inquiry notice of fraudulent

conduct" from the time she entered into the agreement.                                                           Id.; cf.

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1045-46

(9th              Cir.            2011).                       And     there       were    no    other   impediments    to

Philibotte's discovery of the alleged fraud: the lease itself is

short and simple to understand, and she does not allege that

Nisource took any further action to hide the true nature of the

transaction.6                               Cf. Palmer, 465 F.3d at 28 ("This methodology [of

refraining from crediting bald assertions on motions to dismiss]

is particularly appropriate in the TILA context where we . . .

focus[] . . . on the text of the disclosures themselves rather

than                 on             plaintiffs'                        descriptions             of    their    subjective

              6
      Philibotte alleges that Nisource engaged in active deception
when she exercised her option to purchase, but this was not until
February 2014, long after the period had already run. Cf. Hubbard
v. Fidelity Fed. Bank, 91 F.3d 75, 79 (9th Cir. 1996) (declining
to toll the statute of limitations for TILA claims that had run
before defendant's subsequent attempts to conceal violations);
accord Evans, 39 F. Supp. 2d at 1185 ("[A]t the time of those
purported acts, there was no limitations period to toll.").

                                                                          - 10 -
understandings.").                                             Even so, Philibotte did not sue for three

years.

                             Under our "narrow view of equitable exceptions" to the

statute of limitations, we decline to find that tolling is needed

on the facts of this case "to prevent unjust results or to maintain

the integrity of [the] statute."                                             Salois, 128 F.3d at 25 (quoting

King, 784 F.2d at 915).                                             The limitations period ran in January

2012.                  Because Philibotte did not file until March 2014, her

federal TILA claim is barred, and so was properly dismissed.                                               See

15 U.S.C. § 1640(e); cf. McKenna, 693 F.3d at 211.

                                                                          IV.

                             The federal claim having been properly dismissed, there

remain only the state law claims for alleged violations of RISSA,

for            alleged                    violations                of    Massachusetts   CCCDA,   for   unjust

enrichment, and for violations of Massachusetts 93A, over which we

exercise supplemental jurisdiction.7

              7
       We emphasize that where a court "dismisses the foundational
federal claims, it must reassess its jurisdiction." Desjardins,
777 F.3d at 45 (quoting Camelio v. Am. Fed'n, 137 F.3d 666, 672
(1st Cir. 1998)) (internal quotation marks omitted). Although the
"balance of competing factors ordinarily will weigh strongly in
favor of declining jurisdiction over state law claims where[, as
here,] the foundational federal claims have been dismissed at an
early stage in the litigation," the parties do not challenge the
district court's decision to exercise this discretionary
jurisdiction (assuming diversity jurisdiction was unavailable),
and this case can be narrowly decided to avoid concerns of comity.
Camelio, 137 F.3d at 672 ("Comity is a particularly important
concern in these cases."); see also Desjardins, 777 F.3d at 45
(noting that other factors to be balanced include fairness,

                                                                         - 11 -
                             In "exercising supplemental jurisdiction over a state

law claim," we apply "state substantive law" as that law has been

applied by the state's highest court.                                     Barton v. Clancy, 632 F.3d

9, 17 (1st Cir. 2011).                                         "If the highest court has not spoken

directly on the question at issue, we predict 'how that court

likely would decide the issue.'"                                      Id. (quoting González Figueroa

v. J.C. Penney P.R., Inc., 568 F.3d 313, 318-19 (1st Cir. 2009)).

In so doing, we are mindful that "[n]eedless decisions of state

law should be avoided both as a matter of comity and to promote

justice between the parties," Camelio v. Am. Fed'n, 137 F.3d 666,

672 (1st Cir. 1998) (quoting United Mine Workers of Am. v. Gibbs,

383 U.S. 715, 726 (1966)), and so affirm on the narrowest grounds

made apparent by the record, see Debnam, 766 F.3d at 96.

A.            Philibotte's Claim under RISSA

                             The district court correctly held that Philibotte's

RISSA claim is precluded under Massachusetts SJC precedent in Silva

v. Rent-A-Center, Inc., 912 N.E.2d 945 (Mass. 2009).                                        This is

because RISSA's disclosure requirements only apply to consumer

leases meeting "specific [statutory] requirements" that, as Silva

makes clear, Philibotte's lease cannot meet.                                    Silva, 912 N.E.2d at

judicial economy, and convenience). Accordingly, we continue to
the merits, and affirm on narrower grounds than the district court.

                                                                 - 12 -
949-53                   (discussing                           the   standard       for   identifying   "retail

installment sale agreement[s]").

                             In          particular,                 a   consumer    lease   must   satisfy   two

statutory requirements to trigger RISSA's disclosure protections:

(1) the lessee "contracts to pay as compensation for use a sum

substantially equivalent to or in excess of the value of goods

involved"; and (2) "it is agreed that the . . . lessee will become,

or for no other or for a nominal consideration has the option to

become the owner of the goods upon full compliance with his

obligations under the contract."                                            RISSA, Mass. Gen. Laws ch. 255D,

§ 1;8 see also Silva, 912 N.E.2d at 950 n.11 (emphasizing that,

              8    The relevant definition under RISSA states in full:

              "Retail installment sale agreement", [is] an agreement,
              other than a revolving credit agreement or agreement
              reflecting a sale made pursuant thereto, signed by the
              buyer in this commonwealth, involving a finance charge
              and providing for the sale of goods or the rendering of
              services or both, or for the issuance of merchandise
              certificates, for a specified amount which the buyer
              undertakes to pay in more than one payment subsequent to
              the making of the agreement, or not involving a finance
              charge and providing for the sale of goods or the
              rendering of services or both, or for the issuance of
              merchandise certificates, for a specific amount which
              the buyer undertakes to pay in five or more installments
              subsequent to the making of the agreement. A retail
              installment sales agreement shall not include an
              agreement signed by a nonresident buyer in the
              commonwealth if such buyer has agreed that the law of
              his state shall apply. “Retail installment sale
              agreement” shall also include any contract in the form
              of a bailment or lease if the bailee or lessee contracts
              to pay as compensation for use a sum substantially
              equivalent to or in excess of the value of goods involved

                                                                         - 13 -
under RISSA, both definitional requirements must be met).                                                   In

applying at least the first of these requirements, the SJC directs

us to "look . . . to the nature of the contract at the time it was

formed."                       Silva, 912 N.E.2d at 951 (emphasizing that we are to

evaluate "parties' contractual rights and obligations at that

point").9

                             Under this standard, leases will not satisfy the first

requirement                           if          they         do   not   "require   payments    substantially

equivalent to or in excess of the value of the goods" under their

original term.                                Id. at 951-52 (citation omitted).                 Because of this

emphasis on the lease's original term, this RISSA requirement is

not satisfied by a consumer who renews "multiple times" and so

eventually makes payments "exceed[ing] the value of the item."

Id.

              and it is agreed that the bailee or lessee will become,
              or for no other or for a nominal consideration has the
              option to become the owner of the goods upon full
              compliance with his obligations under the contract. A
              retail installment sale agreement shall not include an
              agreement which provides (a) for the payment of the total
              sale price in no more than three monthly installments
              and (b) a finance charge not in excess of one dollar and
              (c) no collateral security for the seller.

Mass. Gen. Laws ch. 255D, § 1.
     9 Some doubt has been cast on how this standard applies to

the second statutory requirement. See, e.g., Saia v. Bay State Gas
Co., 965 N.E.2d 224, 2012 WL 1145913, at *2 (Mass. App. Ct. Apr.
6, 2012) (unpublished disposition). Because we can resolve this
case on the first prong, we do not reach this issue.

                                                                      - 14 -
                             Philibotte's lease cannot meet this requirement because

the original term of her "agreement [does] not require [her] . . .

to pay a 'sum substantially equivalent to or in excess of the value

of the goods involved.'"                                       Id. at 950 (quoting Mass. Gen. Laws ch.

255D, § 1).                           That agreement only obligated her to pay $204, which

she concedes is less than half the alleged value of the water

heater involved.                                     This "absence of any obligation on the part of

[Philibotte] to pay a sum substantially equivalent to the value of

the leased [water heater] is decisive" under the standard applied

by the SJC.                           Id. at 951.

B.            Massachusetts CCCDA Claim

                             Like Philibotte's claim under RISSA, Philibotte's claim

under Massachusetts CCCDA will only succeed if the lease meets the

statutory definition of a "credit sale." Mass. Gen. Laws ch. 140D,

§ 1.              Unlike for RISSA, the SJC has yet to speak directly on the

appropriate construction, and so we must predict how the SJC would

likely rule in this case.                                       Barton, 632 F.3d at 17.

                             The           statutory           definition   of   "credit   sale"   includes

leases "if the . . . lessee contracts to pay as compensation for

use a sum substantially equivalent to or in excess of the aggregate

value of the property and services involved."                                        Mass. Gen. Laws ch.

140D, § 1.10                                   Philibotte's lease clearly does not meet this

              10     The relevant definition reads in full:

                                                                  - 15 -
standard.                        She only "contract[ed] to pay" $204, a sum concededly

less than half the "value of the property . . . involved," and so

far, far less than the value of the property and services -- which

included installation. See id. For this reason, we need not reach

Philibotte's                              argument             that    the     original   term   effectively

constituted a "down payment," because even if the SJC declined to

strictly apply the statutory definition, Philibotte's lease does

not meet it.                             Cf. Saia v. Bay State Gas Co., 965 N.E.2d 224, 2012

WL 1145913, at *1-4 (Mass. App. Ct. Apr. 6, 2012) (unpublished

disposition) (finding a water-heater lease may be a disguised

credit sale where original three-year term required payment far

exceeding value of heater).

                             In so doing, we do not follow the district court's

reasoning that, because CCCDA and RISSA share similar statutory

definitions for the type of consumer transactions covered,11 the

              "Credit sale", [is] any sale in which the seller is a
              creditor. The term includes any contract in the form of
              a bailment or lease if the bailee or lessee contracts to
              pay as compensation for use a sum substantially
              equivalent to or in excess of the aggregate value of the
              property and services involved and it is agreed that the
              bailee or lessee will become, or for no other or a
              nominal consideration has the option to become, the
              owner of the property upon full compliance with his
              obligations under the contract.

Mass. Gen. Laws ch. 140D, § 1.
     11 The only difference between the CCCDA definition and the

RISSA definition is that CCCDA substitutes the "aggregate value of
the property and services involved" for "the value of goods
involved," and "owner of the property" for "owner of the goods."

                                                                      - 16 -
standard articulated in Silva also applies to Philibotte's claim

under the CCCDA.                                       See Philibotte, 2014 WL 6968441, at *4 & n.4.

We         need             not,              and              so   should   not,   reach   that   issue   because

Philibotte's claim plainly fails to meet the first prong of the

CCCDA definition.                                        Accordingly, we need not, and so should not,

decide whether Silva controls the appropriate construction of the

CCCDA.                 Cf. Camelio, 137 F.3d at 672 (quoting United Mine Workers,

383 U.S. at 726) (counseling avoidance of "[n]eedless decisions of

state law").12

C.            Unjust Enrichment & Massachusetts 93A

                             Finally, we affirm dismissal of Philibotte's remaining

claims for unjust enrichment and violations of Massachusetts 93A.

                             A claim for unjust enrichment generally cannot stand

where there is an existing, express contract, unless the contract

See CCCDA, Mass. Gen. Laws ch. 140D, § 1; RISSA, Mass. Gen. Laws
ch. 255D, § 1.

              12
        This is particularly true where, as here, existing state
precedent governing RISSA may complicate the interaction between
the Massachusetts exemption for the CCCDA and the scope of federal
TILA coverage for this type of transaction. Cf. McKenna, 693 F.3d
at 211 (noting the existence of "unsettled questions as to what
federal rights are displaced and what others remain where, as is
the case with Massachusetts, the Federal Reserve has exempted a
state from various TILA's provisions on the grounds that state law
establishes 'substantially similar' requirements"); McKenna v.
First Horizon Home Loan Corp., 475 F.3d 418, 422 (1st Cir. 2007)
(noting that CCCDA is to be construed similarly to TILA); Silva,
912 N.E.2d at 951 (interpreting analogous definition under RISSA);
Saia, 2012 WL 1145913, at *2 (determining whether lease of hot
water   heater   was  a   "credit   sale"   under  CCCDA   without
straightforwardly applying standard articulated in Silva).

                                                                         - 17 -
is not valid.                               See Okmyansky v. Herbalife Int'l of Am., Inc., 415

F.3d 154, 162 (1st Cir. 2005) (collecting cases); see also Zarum

v. Brass Mill Materials Corp., 134 N.E.2d 141, 143 (Mass. 1956).

Philibotte contends that the contract's existence does not bar her

claim                 because                     Nisource          procured    the    contract     by    fraud.

Specifically,                               she           argues    that    Nisource   mischaracterized     the

transaction as a lease when the transaction was, in fact, a

disguised                       credit                  sale   or    retail    installment   sale    to   which

disclosure requirements apply.                                             But we have already rejected her

contention that the lease was, in fact, a credit sale or retail

installment sale agreement within the meaning of the relevant

statutes.                      Because Philibotte does not allege any other fraud that

might render the lease invalid, the existing lease agreement bars

her claim for unjust enrichment.13                                           See Okmyansky, 415 F.3d at 162.

                             Philibotte's 93A claim fails for a similar reason: the

only basis she offers for her 93A claim is that "[a] violation of

CCCDA or the RISSA is as a matter of law a violation of [93A]."

See Mass. Gen. Laws ch. 140D, § 34.                                            We have already rejected her

contention that the lease violated either the CCCDA or RISSA, and

so affirm dismissal of her 93A claim.

              13
        Philibotte does not develop -- and so has waived -- any
argument that the lease was a disguised conditional sale even if
it does not meet the statutory definitions for (disguised) credit
or retail installment sales under CCCDA and RISSA.     See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

                                                                     - 18 -
Affirmed.   Costs are assessed against Philibotte.

                    - 19 -


                                 UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                 No. 07-4543

UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

             v.

EVANS RAY, JR., a/k/a Charlie, a/k/a Chucky, a/k/a Charles
Evans Ray, Jr.,

                     Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:04-cr-00559-AW)

Submitted:        February 2, 2010            Decided:   February 26, 2010

Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

J. James Roos, THE LAW OFFICES OF J. JAMES ROOS, III, Towson,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, Robert K. Hur, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Evans   Ray,    Jr.   appeals        his   conviction       and   life

sentence for distribution of 50 grams or more of crack cocaine,

in violation of 21 U.S.C. § 841(a)(1) (2006).*                   Ray’s counseled

appellate brief raises the following claims:                 (1) the district

court erred when it denied his Fed. R. Crim. P. 29 motion for

judgment of acquittal; (2) the district court erred when it

rejected one of his proposed jury instructions; and (3) the

district court erroneously believed that it lacked the ability

to impose a sentence of less than life imprisonment, and thus

erred when it sentenced him to life in prison.                   We find no error

and therefore affirm.

             We turn first to Ray’s claim that the district court

should   have    granted     his   Rule      29    motion    for    judgment     of

acquittal.      We review a district court’s denial of a Rule 29

motion   for    judgment    of   acquittal    under     a   de    novo   standard.

United States v. Midgett, 488 F.3d 288, 297 (4th Cir. 2007).                      A

guilty verdict must stand “if, viewing the evidence in the light

most favorable to the Government, it is supported by substantial

evidence.”     United States v. Alerre, 430 F.3d 681, 693 (4th Cir.

     *
       Ray was also convicted of possession of ammunition and
firearms by a convicted felon, in violation of 18 U.S.C.
§ 922(g) (2006), and sentenced to 120 months imprisonment for
that crime. On appeal, he does not challenge that conviction or
sentence.

                                      2
2005).       “Substantial evidence” is “evidence that a reasonable

finder      of    fact     could    accept   as    adequate    and    sufficient      to

support a conclusion of a defendant’s guilt beyond a reasonable

doubt.”      Id.

                 Ray first contends that the district court should have

granted his Rule 29 motion because Ray demonstrated entrapment

as a matter of law.           The defense of entrapment has two elements:

“(1) government inducement of the crime and (2) the defendant’s

lack   of    predisposition          to   engage    in   the   criminal      conduct.”

United States v. Ramos, 462 F.3d 329, 334 (4th Cir. 2006).                           The

defense uses a burden-shifting scheme, where the defendant bears

the initial burden of presenting evidence that the government

induced him to commit the crime.                   Once the defendant has done

so,    the       burden    shifts    to   the     government   to    establish       the

defendant’s predisposition beyond a reasonable doubt.                           United

States v. Jones, 976 F.2d 176, 179 (4th Cir. 1992).                     Even if the

government did induce a defendant to commit a crime, the defense

of entrapment fails if the government can prove predisposition.

United States v. Squillacote, 221 F.3d 542, 569 (4th Cir. 2000).

                 Ray argues that the government entrapped him through

its use of a cooperating witness, Timothy Patterson.                        Ray claims

that at the time of his arrest he was not involved in the drug

trade,      and     that    Patterson     convinced      him   to    sell    drugs    by

appealing to their friendship and recalling how Patterson had

                                             3
comforted Ray when Ray’s sister died.                             Even assuming, as Ray

claims, that Patterson’s appeals induced him to commit the drug

sale, we believe that the district court properly denied Ray’s

Rule    29    motion    because       the   Government           introduced      substantial

evidence that Ray was predisposed to traffic in narcotics.

              For example, Patterson testified that Ray offered to

sell    him    cocaine       in    2001     or       2002    –    prior     to   Patterson’s

cooperation      with     the      Government.              Recordings      of   Patterson’s

conversations with Ray indicate that Ray sold cocaine to other

customers, had multiple sources for the drug, and was familiar

with the code words, slang, practice and prices of the drug

trade.        See United States v. Tom, 330 F.3d 83, 90 (1st Cir.

2003)    (“[E]vidence         of     predisposition              may   be   inferred     from

conversations        in      which     a    defendant            displays    knowledge    or

experience      in     the    criminal       activity         under     investigation.”);

United States v. Hernandez, 31 F.3d 354, 360 (6th Cir. 1994)

(noting that a defendant “appeared to know a great deal about

cocaine trafficking”).               Moreover, at the time of his arrest Ray

was in possession of several tools of the drug trade – firearms

and a digital scale bearing cocaine residue.                           See United States

v. Ward, 171 F.3d 188, 195 (4th Cir. 1999) (“Guns are tools of

the drug trade and are commonly recognized articles of narcotics

paraphernalia.”).            Coupled with Ray’s prior convictions for drug

trafficking, this evidence was sufficient to permit a reasonable

                                                 4
jury    to     conclude       beyond        a    reasonable             doubt      that      Ray    was

predisposed to distribute crack cocaine.                                  Thus, the district

court properly denied Ray’s Rule 29 motion for acquittal.

               Next, we consider Ray’s claim that the district court

erred by refusing to give a jury instruction clarifying to the

jury    that    the     prior        convictions           of    a   defendant          raising      an

entrapment          defense     are     not          conclusive         of      the    defendant’s

predisposition.             “[T]he     decision            of    whether      to      give     a   jury

instruction and the content of an instruction are reviewed for

an abuse of discretion.”                United States v. Ellis, 121 F.3d 908,

923 (4th Cir. 1997).            “To determine whether the district court’s

failure to give the requested charge is reversible error, we

must determine whether the instruction (1) was correct; (2) was

not substantially covered by the court’s charge to the jury; and

(3)    dealt    with     some    point          in       the    trial    so     important,         that

failure to give the requested instruction seriously impaired the

defendant’s ability to conduct his defense.”                                  United States v.

Squillacote, 221 F.3d 542, 564-65 (4th Cir. 2000) (citations and

internal quotation marks omitted).

               We    find     that    the       district         court’s      refusal        to    give

Ray’s    requested          instruction          did       not    seriously           impair       Ray’s

ability to conduct his defense.                          As noted above, the Government

presented a considerable amount of evidence, apart from Ray’s

prior convictions, from which a jury could conclude that Ray was

                                                     5
predisposed to deal in crack cocaine.                   Given this evidence, it

is   difficult    to   see    how    Ray    was    prejudiced    by    the    district

court’s refusal to adopt Ray’s proposed instruction.                           “[E]ven

where use or denial of a jury instruction is in error, reversal

is   warranted    only      when    the    error   is   prejudicial     based    on   a

review of the record as a whole.”                See Ellis, 121 F.3d at 923.

            Finally, Ray claims that the district court mistakenly

believed that it lacked the authority to impose a sentence of

less than life imprisonment.               In particular, Ray argues that his

career offender status under the Sentencing Guidelines “clearly

overstates the seriousness of [his] criminal history,” and he

points out that the district court agreed with this assessment.

Ray’s    argument      is    meritless,         however,     because   the     career-

offender enhancement under § 4B1.1 of the Sentencing Guidelines

did not play a role in his sentence.                         Rather,   Ray faced a

statutory mandatory minimum sentence of life imprisonment under

21 U.S.C. § 841(b)(1)(A).             As we have explained, “[e]xcept upon

motion of the Government on the basis of substantial assistance,

a    district    court      still    may     not    depart     below   a     statutory

minimum.”       United States v. Robinson, 404 F.3d 850, 862 (4th

Cir. 2005).       The district court thus did not err in imposing

Ray’s sentence.

            Accordingly, we affirm the district court’s judgment.

We dispense with oral argument because the issues are adequately

                                            6
presented   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED

                                    7


Ziman-Scheuer v Golden Touch Transp. of NY, Inc. (2017 NY Slip Op 03124)

Ziman-Scheuer v Golden Touch Transp. of NY, Inc.

2017 NY Slip Op 03124

Decided on April 25, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 25, 2017

Friedman, J.P., Richter, Feinman, Gische, Gesmer, JJ.

3816 150912/13

[*1]Judith Ziman-Scheuer, Plaintiff-Respondent,
vGolden Touch Transportation of NY, Inc., et al., Defendants-Appellants.

Lewis Brisbois Bisgaard & Smith, LLP, New York (Nicholas Hurzeler of counsel), for appellants.
Robert G. Goodman, P.C., New York (Robert G. Goodman of counsel), for respondent.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered June 13, 2016, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff contends that she slipped and fell while exiting a charter bus because of an oily condition on the bottom step, the uneven condition of the steps, the lack of an adequate handrail, and/or the failure of defendant driver to assist her.
Assuming that plaintiff adequately identified the cause of her fall as an oily substance, defendant driver testified that he saw no such condition before or after plaintiff fell, and there was no evidence sufficient to raise an issue of fact as to whether such a condition existed and, if so, whether it existed for a sufficient time for defendants to remedy it (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Rodriguez v New York City Tr. Auth., 118 AD3d 618 [1st Dept 2014]).
In opposition to defendants' showing through their expert's opinion that the stairs and handrails were safe, plaintiff's expert failed to raised an issue of fact, since the expert's opinion rested on statutes, codes, regulations, and industry standards that applied to buildings, as opposed to buses (see Johnson v 301 Holdings, LLC, 89 AD3d 550, 551 [1st Dept 2011]; Azzaro v Super 8 Motels, Inc., 62 AD3d 525 [1st Dept 2009]). Furthermore, any claim that the handrail was defective because it did not extend to the last step, is unavailing since that step was not accessible unless the door was opened, and the handrail could not extend beyond closed doors of the bus (see Hyman v Queens County Bancorp, Inc., 3 NY3d 743, 745 [2004]).
Defendant driver had no duty to assist plaintiff off the bus. Although the internal rules of defendant corporation required such assistance, internal rules that "go beyond the
standard of ordinary care. . .cannot serve as a basis for imposing liability" (Gilson v Metropolitan Opera, 5 NY3d 574, 577 [2005]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 25, 2017
CLERK


In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                          No. 12-618V
                                     Filed: August 10, 2017
                                      Not to be Published.

*************************************
J.T.,                                     *
                                          *
               Petitioner,                *
                                          *
 v.                                       *     Tetanus-diphtheria-acellular
                                          *     pertussis (Tdap); Table brachial
SECRETARY OF HEALTH                       *     neuritis; respondent concedes
AND HUMAN SERVICES,                       *     entitlement
                                          *
               Respondent.                *
                                          *
*************************************
Lisa A. Roquemore, Rancho Santa Margarita, CA, for petitioner.
Lisa A. Watts, Washington, DC, for respondent.

MILLMAN, Special Master

                                  RULING ON ENTITLEMENT 1

       On September 19, 2012, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that tetanus-diphtheria-acellular pertussis
(“Tdap”) vaccine he received on October 1, 2009 caused him neurological injury. Pet. at ¶¶ 1
and 2.

       On December 10, 2012, the undersigned held the first telephonic status conference in this
case. Respondent’s counsel stated that this might be a conceded case of a Table brachial neuritis.
Respondent wanted to file a Rule 4(c) Report. The undersigned gave petitioner until February 1,
2013 to make a demand on respondent.

1
 Because this unpublished ruling contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished ruling on the United States Court of Federal
Claims’ website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)
(Federal Management and Promotion of Electronic Government Services). Vaccine Rule 18(b) states that
all decisions of the special masters will be made available to the public unless they contain trade secrets
or commercial or financial information that is privileged and confidential, or medical or similar
information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a
decision is filed, petitioner has 14 days to identify and move to redact such information prior to the
document’s disclosure. If the special master, upon review, agrees that the identified material fits within
the banned categories listed above, the special master shall redact such material from public access.
        On December 18, 2012, respondent filed his Rule 4(c) Report conceding entitlement, i.e.,
that the Tdap vaccine caused petitioner’s left brachial neuritis, a Table injury. Respt’s Rep. at 6-
7. This case has been in damages since then. It is on the cusp of resolution by proffer.

        On August 10, 2017, respondent informally requested by e-mail to the undersigned’s law
clerk that the undersigned issue a ruling on entitlement. The undersigned GRANTS
respondent’s informal request.

       The undersigned rules that petitioner is entitled to damages.

IT IS SO ORDERED.

Dated: August 10, 2017                                           /s/ Laura D. Millman
                                                                   Laura D. Millman
                                                                     Special Master

                                                 2


Order entered June 19, 2013

                                              In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                       No. 05-13-00182-CR
                                       No. 05-13-00183-CR
                                       No. 05-13-00184-CR
                                       No. 05-13-00185-CR

                           THOMAS EPPELSHEIMER, Appellant

                                                 V.

                              THE STATE OF TEXAS, Appellee

                   On Appeal from the Criminal District Court No. 6
                                 Dallas County, Texas
      Trial Court Cause Nos. F11-71623-X, F11-71319-X, F11-71624-X, F11-71625-X

                                            ORDER
       The Court REINSTATES the appeals.

       On April 24, 2013, we ordered the trial court to make findings regarding why the

reporter’s record had not been filed. On May 29, 2013, we received the reporter’s record.

Therefore, in the interest of expediting the appeals, we VACATE the April 24, 2013 order

requiring findings.

       Appellant’s brief is due within thirty days of the date of this order.

                                                       /s/    LANA MYERS
                                                              JUSTICE