Mosko v. Raytheon Co.

• Decision Date: 10 November 1993
• Citation: Mosko v. Raytheon Co., 622 N.E.2d 1066, 416 Mass. 395 (Mass. 1993)
• Parties: Wayne R. MOSKO v. RAYTHEON COMPANY.
• Court: Supreme Judicial Court of Massachusetts

Page 1066

622 N.E.2d 1066

416 Mass. 395

Wayne R. MOSKO v.RAYTHEON COMPANY.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Sept. 14, 1993.

Decided Nov. 10, 1993.

Thomas J. Iovieno, Boston, for plaintiff.

Carol A. Griffin, Boston, for defendant.

Before WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

GREANEY, Justice.

The plaintiff, Wayne R. Mosko, was injured when struck by the vehicle of an employee of the defendant, Raytheon Company(Raytheon), who had attended a Christmas party for Raytheon employees and become intoxicated.The plaintiff brought an action in the Superior Court to recover damages from Raytheon on the basis that Raytheon was responsible for the negligence of its employee.A judge of the Superior Court granted Raytheon's motion for summary judgment.Mass.R.Civ.P. 56(b), 365 Mass. 824(1974).The plaintiff appealed.We granted his application for direct appellate review and affirm the judgment for Raytheon.

Viewed in the light most favorable to the plaintiff, seeAlioto v. Marnell, 402 Mass 36, 37, 520 N.E.2d 1284(1988), the materials submitted on the summary judgment motion established the following facts.On the evening of December 11, 1987, a Christmas party was held for employees of Raytheon's Manchester, New Hampshire, facility at Peter C's, a South Bedford, New Hampshire, restaurant.With the company's permission, Raytheon employees planned the event during working hours.The party was advertised (as a Raytheon employees' Christmas party) on posters displayed at Raytheon's facility, and tickets to the event were sold there.Raytheon partially sponsored the event, furnishing $300 toward the initial payment to reserve a room at Peter C's, and an additional $1,450 to defray part of the food bill which was not covered by ticket sales to employees.Raytheon employees attending the event purchased their own alcoholic beverages from a cash bar staffed by the employees of Peter C's.

One of Raytheon's employees became intoxicated at the party.While driving home on a Massachusetts highway, the employee swerved into the breakdown lane where the plaintiff was preparing to change a tire on his vehicle.The employee's vehicle struck the plaintiff's vehicle and seriously injured the plaintiff.

Against this factual background, we must decide a question we have reserved, "whether, in an accident involving injuries to a third party, we would consider [adopting] a separate standard [of care] for [an] employer-host."Manning v. Nobile, 411 Mass. 382, 389-390 n. 9, 582 N.E.2d 942(1991).¹Based on common law principles of negligence, this court has ruled that, in some circumstances, those serving alcohol to an obviously intoxicated person may be liable to a third party for injuries caused by the intoxicated person.A commercial vendor of alcoholic beverages may be liable to a third person who is injured in a motor vehicle accident negligently caused by a customer if the vendor sold alcohol to someone the vendor knew or reasonably should have known was intoxicated.McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 156, 496 N.E.2d 141(1986).Cimino v. Milford Keg, Inc., 385 Mass. 323, 327, 431 N.E.2d 920(1982).²

In McGuiggan v. New England Tel. & Tel. Co., supra, 398 Mass. at 162, 496 N.E.2d 141, this court indicated that, in addition to the liability of commercial vendors of alcohol, "[w]e would recognize a social host's liability to a person injured by an intoxicated guest's negligent operation of a motor vehicle where a social host who knew or should have known that his guest was drunk, nevertheless gave him or permitted him to take an alcoholic drink and thereafter, because of his intoxication, the guest negligently operated a motor vehicle causing the third party's injury."SeeCremins v. Clancy, 415 Mass. 289, 291, 612 N.E.2d 1183(1993);Manning v. Nobile, supra, 411 Mass. at 390, 582 N.E.2d 942.

The plaintiff argues that a duty of care should be imposed on an employer like Raytheon who hosts or sponsors a party at which employees consume alcohol to take reasonable steps to prevent employees from driving in order to minimize the risk of harm to innocent third parties.We decline to recognize such a duty on the facts here.We conclude that the possible liability of an employer-host should be tested by existing standards governing a social host's liability.Measuring Raytheon's conduct by those standards, we further conclude that Raytheon is not liable to the plaintiff.

1.Relying primarily on Dickinson v. Edwards, 105 Wash.2d 457, 716 P.2d 814(1986), the plaintiff argues that employers who host or sponsor parties at which their employees become intoxicated may be held liable for the negligent driving of their employees based on the doctrine of respondeat superior.The Dickinson case concerned a motor vehicle accident caused by an employee of Kaiser Aluminum & Chemical Corporation(Kaiser).The employee had attended a banquet hosted by Kaiser to honor its long-term employees.Kaiser paid all of the expenses of the function, including the cost of alcoholic beverages served to the guests, and the employee took ample advantage of the company's generosity.Id. at 459-460, 716 P.2d 814.Three members of the Washington Supreme Court concluded that an employee attending a banquet hosted by his employer (off the employer's premises and outside of working hours), might be found to be acting within the scope of his employment while drinking at the banquet.³The employee's negligent conduct, for which the employer could be held vicariously liable, was said to be the employee's excessive consumption of alcohol at the banquet rather than his conduct in negligently driving a vehicle while intoxicated.⁴In our opinion, this is a strained application of the doctrine of respondeat superior which cannot be sensibly reconciled with the generally accepted factors and standards relied on in determining whether an employee is acting within the scope of his employment.

The "conduct of an agent is within the scope of employment if it is of the kind he is employed to perform, Douglas v. Holyoke Mach. Co., 233 Mass. 573, 576, 124 N.E. 478(1919); if it occurs substantially within the authorized time and space limits, Vallavanti v. Armour & Co., 260 Mass. 417, 419-420, 157 N.E. 527(1927); and if it is motivated, at least in part, by a purpose to serve the employer, Donahue v. Vorenberg, 227 Mass. 1, 5, 116 N.E. 246(1917);McKeever v. Ratcliffe, 218 Mass. 17, 20, 105 N.E. 552(1914).SeeRestatement (Second) of Agency§ 228(1958)."Wang Labs., Inc. v. Business Incentives, Inc., 398 Mass. 854, 859, 501 N.E.2d 1163(1986).Travel to and from home to a place of employment generally is not considered within the scope of employment.SeeWormstead v. Town Manager of Saugus, 366 Mass. 659, 666, 322 N.E.2d 171(1975);Kelly v. Middlesex Corp., 35 Mass.App.Ct. 30, 32, 616 N.E.2d 473(1993).

Raytheon's employee in this case, a product assurance manager who was driving home at the time of the accident, was not engaged in conduct of the kind he was hired to perform.The party was not held on Raytheon's premises or during working hours.Any intangible benefit to Raytheon of improved employee morale would not be a sufficient basis to transform a purely social occasion, at which attendance was voluntary, into an evening of work.⁵We agree with the judge, and the decisions brought to our attention which we consider more persuasive, that an employer is not vicariously liable on the facts present here.⁶An employee's voluntary attendance at a social event sponsored by his employer, like the party here which was off the employer's premises and outside of normal working hours, cannot reasonably be viewed as conduct within the scope of his employment.

2.Relying on the concurring opinion in Dickinson v. Edwards, supra, 105 Wash.2d at 470-482, 716 P.2d 814, see note 2, supra, the plaintiff also argues 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.⁷Although, as a general rule, there is no duty to protect others from the negligent or wrongful acts of third parties, based on social values and customs, such a duty may be premised on the existence of a special relationship between the negligent person and the person or entity on whom it is sought to impose liability.SeeIrwin v. Ware, 392 Mass. 745, 756-757, 467 N.E.2d 1292(1984);Mullins v. Pine Manor College, 389 Mass. 47, 50, 449 N.E.2d 331(1983);Pucci v. Amherst Restaurant Enters., 33 Mass.App.Ct. 779, 781, 605 N.E.2d 309(1992).In limited circumstances, "[w]e have discerned such a special relationship in cases addressing the liability of private parties to members of the general public where alcohol and driving were involved."Irwin v. Ware, supra, 392 Mass. at 757, 467 N.E.2d 1292.

No such duty of care has been imposed, however, when a private defendant has not engaged in conduct that fairly might be described as negligent by furnishing alcohol to an obviously intoxicated person (or to a minor).⁸In addressing a claim of negligence, our cases have emphasized that a social host's duty of care derives from the host's actual control of the liquor supply.Ulwick v. DeChristopher, 411 Mass. 401, 407, 582 N.E.2d 954(1991).Only when a host controls the liquor supply is it reasonable to assume that a host has the ability to monitor the guests' alcohol consumption.SeeCremins v. Clancy, supra, 415 Mass. at 293-294, 612 N.E.2d 1183(declining to find duty of care where teenagers shared ownership of alcohol supply);Ulwick v. DeChristopher, supra, 411 Mass. at 406-407, 582 N.E.2d 954(declining to find duty of care where defendant hoste...