Lev v. Beverly Enterprises-Massachusetts

• Decision Date: 18 June 2009
• Docket Number: No. 08-P-58.,08-P-58.
• Citation: 74 Mass. App. Ct. 413,907 N.E.2d 1114
• Court: Appeals Court of Massachusetts
• Parties: Charles LEV v. BEVERLY ENTERPRISES-MASSACHUSETTS, INC.<SMALL><SUP>1</SUP></SMALL>

907 N.E.2d 1114

74 Mass. App. Ct. 413

Charles LEV v. BEVERLY ENTERPRISES-MASSACHUSETTS, INC.¹

No. 08-P-58.

Appeals Court of Massachusetts, Middlesex.

Argued October 8, 2008.

Decided June 18, 2009.

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

Joseph M. Desmond, Boston (Lawrence F. Boyle with him) for the defendant.

Present: BERRY, McHUGH, & GRAINGER, JJ.

BERRY, J.

The plaintiff sued the defendant, Beverly Enterprises-Massachusetts, Inc. (Beverly), for serious injuries sustained when the plaintiff was hit by a car driven by Beverly employee John Ahern. At the time of the accident, Ahern was intoxicated and had just left a restaurant where he had been drinking alcoholic beverages while meeting with his work supervisor. Ahern was arrested for, and convicted of, operating while under the influence of intoxicating liquor (OUI). The OUI conviction was his third such conviction.

A Superior Court judge entered summary judgment for Beverly. This case, in the main, is controlled by the holdings in Mosko v. Raytheon Co., 416 Mass. 395, 622 N.E.2d 1066 (1993) (Mosko); Kelly v. Avon Tape, Inc., 417 Mass. 587, 631 N.E.2d 1013 (1994) (Kelly); and Commerce Ins. Co. v. Ultimate Livery Serv., Inc., 452 Mass. 639, 897 N.E.2d 50 (2008) (Ultimate). Based on this precedent, potential employer host liability cannot as matter of law be imposed against Beverly. Accordingly, we affirm.²

1. The summary judgment record. Ahern worked as a chef between the hours of 7:00 A.M. and 5:30 P.M. at a nursing home owned and operated by Beverly. On March 11, 2004, after completing his shift at around 5:45 P.M., Ahern went to the South Pacific restaurant to meet with his supervisor, Lynda Pacitti. It is disputed whether the meeting was prearranged or whether Ahern was required to attend.³ It is not disputed that work matters were discussed at the meeting between Ahern and his supervisor. Both had drinks during the course of the approximately one hour and fifteen minutes they were present at the restaurant together. Ahern drank vodka and soda water. At or around 7:00 P.M., Ahern paid the tab for both his and Pacitti's drinks, got into his private automobile, and headed home. Shortly after leaving the South Pacific restaurant, Ahern struck the plaintiff.

2. Employer host liability analysis. a. Massachusetts decisions. As noted above, the lead cases on the issue whether employer host liability may be imposed are Mosko, supra; Kelly, supra; and Ultimate, supra. In Mosko, the employer sponsored a holiday party at an off-site restaurant, which was advertised in the workplace as the Raytheon Christmas party and as to which the company contributed $1,750 to cover part of the costs. However, there was a cash bar, and the restaurant staff served the drinks. An intoxicated Raytheon employee left the party and, while driving home, struck the plaintiff, Mosko. Mosko, 416 Mass. at 396, 622 N.E.2d 1066. Against this backdrop, the Supreme Judicial Court focused on the issue of control of the alcohol. The court noted that "our cases have emphasized that a social host's duty of care derives from the host's actual control of the liquor supply," and the court held that "[o]nly when a host controls the liquor supply is it reasonable to assume that a host has the ability to monitor the guests' alcohol consumption." Id. at 402, 622 N.E.2d 1066.

The Kelly case extended the rule set out in Mosko to circumstances in which an employee stored beer on the business premises and the employer had knowledge of the employee's alcohol consumption. Specifically, in Kelly, the employee stored beer in the company refrigerator, drank the beer during work hours, and left the workplace in a drunken state, all with the knowledge of the employer. Kelly, 417 Mass. at 588, 631 N.E.2d 1013. The court held, as matter of law, that there was no duty of care on the employer's part and hence no liability to the injured party. The court saw "no reason in the present case [Kelly] to depart from the principle which we announced in Mosko, supra." Kelly, 417 Mass. at 589, 631 N.E.2d 1013. The court's analysis (as in Mosko) focused on the fact that the employer did not furnish or control the beer the employee drank. Therefore, the court held, "the defendant [employer] owed no duty to protect members of the general public from the consequences of [the employee's] intoxication. Because the defendant owed no duty of care to the plaintiffs under the doctrine of host liability, the Superior Court judge correctly allowed the defendant's motion for summary judgment on this issue." Ibid. Both Mosko and Kelly stand for the legal principle that, if the employer does not furnish and control the alcohol consumed by the intoxicated employee, there is no employer-based duty of care, and there is no employer host liability for any ensuing negligent acts of an intoxicated employee. Accord Ulwick v. DeChristopher, 411 Mass. 401, 407, 582 N.E.2d 954 (1991) ("[T]he consideration that the duty of care follows from control over the liquor supply . . . furnish[es] practical limits of potential liability").

Citing the case of Ulwick v. DeChristopher, supra, in the recent case of Ultimate, 452 Mass. at 646, 897 N.E.2d 50, the Supreme Judicial Court reiterated that social host liability is not a legally tenable theory of recovery where a putative defendant is not the alcohol supplier. In that case, the defendant Ultimate Livery Service, Inc. (Ultimate), provided livery transportation services for social events. It was anticipated that the passengers to be driven about by Ultimate were likely to engage in alcohol drinking at various venues. It was in connection with such a drinking-related event, a bachelor party, that several men were transported to and from bars and party sites by an Ultimate livery driver. Thereafter, the driver dropped off several partygoers near the place where a friend had left a car. A partygoer, who was heavily intoxicated, drove the car away and hit another car, causing death to one person and serious injury to three other persons. The court held that because "[t]here is no evidence . . . that Ultimate or [its employee driver] provided or served [the intoxicated driver] with the alcohol he consumed . . . summary judgment [correctly entered as matter of law] in favor of Ultimate and [its driver] on the social host liability claims." Ibid. In so holding, the court relied on the precedent "[i]n numerous social host cases, [wherein] we have held that a social host is not liable to a person injured as a result of a guest's excessive consumption of alcohol that was not owned or furnished by the host." Ibid., quoting from Burroughs v. Commonwealth, 423 Mass. 874, 878, 673 N.E.2d 1217 (1996).⁴

b. The employee alcohol consumption policy. The aforecited precedent compels, we believe, the affirmance of summary judgment in this case. There is, however, a factor in this case not previously addressed in the case law. That factor is the existence of a policy codified in an employment manual which prohibits Beverly employees from, among other things, drinking alcohol on company premises or while conducting company business off company premises. There are disciplinary sanctions for a violation of the policy. We set forth the Beverly policy below.⁵

For the reasons that follow, we conclude that the existence of such an employer policy prohibiting drinking does not override the fundamental legal principles set in Mosko and Kelly. Indeed, in Mosko, the court rejected the proposition that "an employer's special relationship with its employees, and the concomitant ability to control their actions, warrants imposition of a duty on an employer hosting or sponsoring an employee party to take reasonable steps to prevent employees from driving while intoxicated, even when the employer neither furnishes nor controls the alcohol served at the party." Mosko, 416 Mass. at 400, 402-403, 622 N.E.2d 1066. In reaching this determination, the court, in a footnote, see id. at 400 n. 7, 622 N.E.2d 1066, reviewed Restatement (Second) of Torts §§ 315 and 317 (1965).⁶, ⁷ The court, noting that courts in a number of jurisdictions had determined that "the principles expressed in §§ 315 and 317 cannot be read to impose a duty on the employer," concluded that " § 317 cannot be read to apply to an accident that occurs when an employee is driving his own vehicle and is not on his employer's premises." Mosko, 416 Mass. at 401 n. 7, 622 N.E.2d 1066.

That the above two Restatement sections were not accepted by the Supreme Judicial Court as imposing a duty of care on an employer undermines the employee-control/duty of care framework articulated in the dissent. It is hard to see how the existence of an employer policy prohibiting drinking on the job by itself changes the usual rules governing an employment relationship and creates a "special relation" (§ 315) between the actor (the employer) and the third person (the employee) requiring the employer to prevent the employee from causing harm to other, outside persons, or confers on the master (the employer) the "ability to control" (§ 317) the servant (the employee) vis-à-vis the outside world. In short, it is hard to see whence comes the control and duty of care imposed upon the employer (such as the dissent posits), which, in turn, may give rise to employer host liability to any person in the outside world who may be hurt by the employee's excessive drinking, driving, and causing an accident. Simply issuing a company policy against drinking on the job cannot be deemed to have so broad a reach. Nor does such a policy confer the kind or level of control of employee drinking that the dissent envisions.

The dissent concludes that as matter of law an employment alcohol prohibition policy, in and of itself and standing alone, may be deemed to impose a duty of care on the employer and to alter the general rule announced in Mosko and Kelly as to no employer host...