Lev v. Beverly Enter.S-mass. Inc

Decision Date07 July 2010
Docket NumberSJC-10597.
Citation929 N.E.2d 303,457 Mass. 234
PartiesCharles LEVv.BEVERLY ENTERPRISES-MASSACHUSETTS, INC., & others.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

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Marc Diller, Boston, (B. Ian Julier with him) for the plaintiff.

Joseph M. Desmond, Boston, (David Viens with him) for Beverly Enterprises-Massachusetts, Inc.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

SPINA, J.

The plaintiff, Charles Lev, commenced this action against, among others, Beverly Enterprises-Massachusetts, Inc. (Beverly), seeking damages for injuries he sustained as a result of being struck by a motor vehicle driven by John Ahern, an employee of Beverly, who was intoxicated at the time of the accident. Beverly filed a motion for summary judgment pursuant to Mass. R. Civ. P. 56, as amended, 436 Mass. 1404 (2002), with respect to counts II and III of the amended complaint. Count II alleged that Beverly was vicariously liable for Ahern's negligence based on their employment relationship, and count III alleged traditional negligence on the part of Beverly. A judge in the Superior Court allowed the summary judgment motion, and a divided panel of the Appeals Court affirmed. See Lev v. Beverly Enters.-Mass., Inc., 74 Mass.App.Ct. 413, 907 N.E.2d 1114 (2009). We granted the plaintiff's application for further appellate review, and now affirm.

1. Background. We summarize the material facts in the light most favorable to the plaintiff, the nonmoving party. See Foster v. Group Health Inc., 444 Mass. 668, 672, 830 N.E.2d 1061 (2005). Ahern was employed as a chef at the Heathwood Nursing and Rehabilitation Center (Heathwood) in Chestnut Hill, a facility owned and operated by Beverly. On March 11, 2004, the date of the accident, Ahern began his shift at Heathwood around 7 a.m. At approximately 5:30 p.m., Ahern left Heathwood 2 and drove to South Pacific Chinese Restaurant (South Pacific) in Newton where he was joined by Lynda Pacitti, a dietary services manager at Heathwood and his direct supervisor. The two had known each other for over twenty-five years as colleagues and friends. While at South Pacific, Ahern and Pacitti sat in the lounge area and discussed an upcoming Department of Public Health survey. They reviewed menus, which Pacitti had with her, and talked about sanitation issues.3 While at South Pacific, Ahern purchased two drinks and consumed at least one drink and one-half of the other-vodka and soda water.

At approximately 7 p.m., Ahern left South Pacific in his personal vehicle to go home. While driving through the intersection of Washington Street and the on-ramp to Route 128 north in Newton, Ahern's vehicle struck the plaintiff as he was crossing the street. The plaintiff suffered severe and debilitating injuries. Ahern was arrested and eventually convicted of operating a motor vehicle while under the influence of intoxicating liquor, in violation of G.L. c. 90, § 24(1) ( a ) (1).

In count II of his amended complaint, the plaintiff alleged that Ahern was acting within the scope of his employment when he became intoxicated at South Pacific and then negligently operated his motor vehicle, causing it to strike and injure the plaintiff. The plaintiff further alleged, in count III of his complaint, that Beverly, through its employees (i.e., Pacitti), controlled and monitored Ahern's consumption of alcohol; knew or should have known that he was intoxicated; and permitted him to operate his motor vehicle while in that condition, resulting in the plaintiff's severe injuries.

In her memorandum of decision and order, dated June 27, 2007, allowing Beverly's motion for summary judgment, the judge concluded that, with respect to count II, Ahern's actions were not within the scope of his employment, and that, even if his meeting with Pacitti at South Pacific could be considered work related, the liability of an employer does not extend to acts committed by employees when traveling to and from work. As such, the judge continued, Ahern was no longer acting within the scope of his employment when he entered his vehicle to drive home. The judge further concluded that, with respect to count III, Beverly, at most, could be held to the duty of a social host. However, in this case, the judge continued, there was no basis for imposing liability on Beverly where South Pacific alone controlled the manner in which alcohol was served to Ahern. The plaintiff subsequently filed a motion for reconsideration, which the judge denied. A separate and final judgment entered for Beverly on October 17, 2007, and counts II and III of the plaintiff's amended complaint were dismissed.4

The Appeals Court affirmed, concluding that Beverly was not liable to the plaintiff either under a theory of respondeat superior or under principles of employer-host liability. See Lev v. Beverly Enters.-Mass., Inc., supra at 414-422, 907 N.E.2d 1114.

2. Standard of review. “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.” Cargill, Inc. v. Beaver Coal & Oil Co., 424 Mass. 356, 358, 676 N.E.2d 815 (1997). See Mass. R. Civ. P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue. See Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989). Any doubts as to the existence of a genuine issue of material fact are to be resolved against the party moving for summary judgment. See Attorney Gen. v. Bailey, 386 Mass. 367, 371, 436 N.E.2d 139, cert. denied, 459 U.S. 970, 103 S.Ct. 301, 74 L.Ed.2d 282 (1982).

3. Liability based on respondeat superior. The plaintiff first contends that Ahern was acting within the scope of his employment when he became intoxicated at South Pacific, and that Ahern was still acting within the scope of his employment when he operated his motor vehicle in such a manner as to cause the plaintiff's accident and injuries. Thus, in the plaintiff's view, Beverly is vicariously liable for Ahern's negligence. We disagree.

Under the doctrine of respondeat superior, “an employer, or master, should be held vicariously liable for the torts of its employee, or servant, committed within the scope of employment.” Dias v. Brigham Med. Assocs., Inc., 438 Mass. 317, 319-320, 780 N.E.2d 447 (2002). We have stated that [t]he ‘conduct of an agent is within the scope of employment if it is of the kind he is employed to perform, ... if it occurs substantially within the authorized time and space limits, ... and if it is motivated, at least in part, by a purpose to serve the employer’ (citations omitted). Mosko v. Raytheon Co., 416 Mass. 395, 399, 622 N.E.2d 1066 (1993) ( Mosko ), quoting Wang Lab., Inc. v. Business Incentives, Inc., 398 Mass. 854, 859, 501 N.E.2d 1163 (1986). See Restatement (Second) of Agency § 228 (1958). Generally speaking, travel to and from home to a place of employment is not considered to be within the scope of employment (colloquially referred to as the “going and coming” rule). See Mosko, supra. See also Restatement (Second) of Agency supra at § 233 comment a, at 516 (time of service “begins only when the master has a right to direct the method by which the servant is to perform the work, and terminates when the master has no longer a right to control it”). Cf. Wormstead v. Town Manager of Saugus, 366 Mass. 659, 666-667, 322 N.E.2d 171 (1975) (police officer injured during lunch break, a time when officers continue to perform police functions in community, included in class of “traveling workers” not barred from receiving compensation under G.L. c. 41, § 111F, by “going and coming” rule).5

Here, assuming for purposes of Beverly's summary judgment motion that Ahern was acting within the scope of his employment during the time he was meeting with Pacitti at South Pacific to discuss the Department of Public Health survey and review menus, we conclude that the scope of his employment ended when he left South Pacific to travel home. At that juncture, Ahern was no longer acting on behalf of or under the direction or control of Beverly. He simply was driving home from a meeting with his supervisor, conduct that, substantively, was no different than traveling home after the completion of his shift at Heathwood. Put another way, Ahern's homeward-bound trip from South Pacific was not an essential part of his employer's mission.6 Because Ahern was not acting within the scope of his employment at the time he struck and injured the plaintiff, his purportedly negligent actions could not be imputed to Beverly under a theory of respondeat superior.7

4. Employer-host liability and traditional negligence. To prevail on a claim of negligence, “a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage.” Jupin v. Kask, 447 Mass. 141, 146, 849 N.E.2d 829 (2006). The existence of a duty of care is a question of law and, therefore, is an appropriate subject for summary judgment. See id. If a defendant does not owe a legal duty to a plaintiff, then there can be no actionable negligence. See Remy v. MacDonald, 440 Mass. 675, 677, 801 N.E.2d 260 (2004). See also J.R. Nolan & L.J. Sartorio, Tort Law § 11.3 (3d ed.2005). As a preliminary matter, the focus of the plaintiff's argument is on traditional negligence principles, not on employer-host liability. See Commerce Ins. Co. v. Ultimate Livery Serv., Inc., 452 Mass. 639, 645, 897 N.E.2d 50 (2008) (social host liability claims distinct from negligence claims). As such, we discuss this latter theory briefly, given that it was a significant part of the decisions of the Superior Court and the...

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