Trusiani v. Cumberland and York Distributors, Inc.

• Decision Date: 24 February 1988
• Citation: 538 A.2d 258
• Parties: Paul TRUSIANI et al. v. CUMBERLAND AND YORK DISTRIBUTORS, INC.
• Court: Maine Supreme Court

Page 258

538 A.2d 258

56 USLW 2523

Paul TRUSIANI et al. v. CUMBERLAND AND YORK DISTRIBUTORS, INC.

Supreme Judicial Court of Maine.

Argued June 8, 1987.

Decided Feb. 24, 1988.

John Kelly (orally), Leland Chisholm, Kelly, Remmel & Zimmerman, Portland, for Marinos.

Daniel G. Lilley (orally), James C. Hunt, Portland, for Trusiani.

Brett B. Baber, Thomas F. Monaghan (orally), Monaghan, Leahy, Hochadel & Libby, Portland, for defendant.

Before McKUSICK, C.J., and NICHOLS, GLASSMAN, SCOLNIK and CLIFFORD, JJ.

NICHOLS, Justice.

The Defendant, Cumberland and York Distributors, Inc., appeals from a judgment entered by the Superior Court (Cumberland County) upon a jury verdict for the Plaintiffs, Paul Trusiani and John and Henrietta Marino, on a common law negligence count. On appeal, the Defendant contends that the trial court erred as a matter of law in determining that it owed a duty to the Plaintiffs to exercise reasonable care in preventing an employee who had consumed self-supplied liquor at a company Christmas Party, but was not visibly intoxicated, from operating his motor vehicle. The Plaintiffs Marino cross-appealed contending that the court erred in denying them prejudgment interest pursuant to 14 M.R.S.A. § 1602(1) (Supp.1986) inasmuch as they neither objected nor joined in the Plaintiff Trusiani's motion to continue.

We conclude that there was no legal duty devolving upon the Defendant corporation under these circumstances, and accordingly we vacate the judgment.

The Defendant, Cumberland and York Distributors, Inc., is a wholesale distributor of beer and wine. During the month of December, 1982, Edward Bryant Grantham, age 20, was employed by it to drive a delivery truck in the Portland area. In addition to this job, Grantham had a second job at the South Portland Burger King where he worked a couple of nights a week from 5:00 P.M. until midnight or 1:00 A.M. His supervisor knew that he had a second job, but was unaware of his precise hours.

On December 23, 1982, Grantham drove for the Defendant from 6:58 A.M. to 5:14 P.M., and then worked at Burger King until midnight. The following day, after working for the Defendant in the morning, Grantham returned to the Defendant's place around noon to "cash-up." At that time the Defendant provided its employees with party platters of cheese, meat, bread and rolls in celebration of Christmas. Each employee was also given a bottle of champagne and a turkey.

At that time the Defendant had a policy of prohibiting the drinking of alcoholic beverages on its premises. That policy had been orally communicated to the drivers by Peter Mooney, the shipping supervisor. The Defendant, as a wholesale distributor of beer and wine, was also subject to regulations promulgated by the Maine State Liquor Commission that prohibited a wholesale licensee, such as this Defendant, from permitting the consumption of intoxicating liquor on the premises.

There was no evidence that Grantham had consumed any alcoholic beverages prior to "cashing-up;" however, he had purchased a fifth of whiskey which he brought to his employer's Christmas gathering. There he consumed two or more drinks of whiskey and coca-cola. Grantham testified that he did not "flaunt" this consumption and that he drank the whiskey from a coca-cola can. Several other drivers were drinking beer in their supervisor's office. Although this was a brand of beer sold by the Defendant there was testimony that the Defendant did not supply alcoholic beverages at this party. Grantham testified that his supervisor saw them drinking but did not do or say anything about it. Mooney testified that he did not observe the drivers drinking alcoholic beverages, nor did he knowingly allow them to continue.

When Grantham "punched out" at about one o'clock that afternoon, he drove immediately to a South Portland fast-food restaurant and ate a substantial lunch. He then stopped at his girlfriend's home in Scarborough to drop off his turkey and champagne. Grantham then proceeded southerly along U.S. Route 1 toward his Saco home in conditions of snow and sleet. As he proceeded Grantham apparently fell asleep and, allowing his vehicle to drift across the centerline, he collided with a north-bound automobile occupied by the Plaintiffs, Paul Trusiani and John Marino. A witness at the scene of the accident testified that Grantham seemed "extremely groggy" and said "Gee, I don't remember anything, I must have fallen asleep ... I just got out of work."

Grantham's blood-alcohol test, taken within the hour, was .017. ¹ After experts gave inconsistent testimony as to the reliability and significance of the results from that test, the jury returned a verdict for the Defendant employer on a count brought under Maine's Dram Shop Act, 17 M.R.S.A. § 2002 (1983), and a verdict for the Plaintiffs on the negligence count. The court denied the Defendant employer's motions for judgment notwithstanding the verdict and for a new trial. Judgment was entered on these verdicts.

By submitting the negligence count to the jury the Superior Court implicitly concluded that the Defendant had a duty to the driving public to use reasonable care either to prevent its employees from participating in conduct that could impair their driving or to prevent them from driving under such circumstances. Although the court did not discuss the origin of this duty in its jury instructions, it did elaborate in its order denying the post-trial motions.

In this case there are special circumstances that affect the court's decision that the defendant Cumberland and York had a duty to the plaintiffs to prevent the consumption of alcohol on its premises by its employee Edward Grantham. This employer is a wholesale distributor of alcoholic beverages. Its own company policies prohibit the consumption of alcoholic beverages by employees on the premises. State regulations also prohibit such consumption. The imposition of liability does not impose a new standard of conduct that may impair the effective operation of a business unprepared for such a standard. Liability only adds to the consequences of failing to do what company policy and state regulation already require them to do.

On appeal of that judgment the Defendant contends that the Superior Court erred in holding that the Liquor Commission regulations gave rise to such a duty and further argues that there is no other basis in law for imposing a duty under these circumstances.

Negligence, we know, does not exist in the abstract. Fundamentally, whether one party owes a duty of care to another is a question of law. Vu v. Singer Co., 538 Supp. 26, 29 (N.D.Cal.1981); Bence v. Crawford Savings & Loan Association, 80 Ill.App.3d 491, 492, 35 Ill.Dec. 902, 903, 400 N.E.2d 39, 40 (1980); Donahue v. Copiaque Union Free School District, 64 A.D.2d 29, 31-32, 407 N.Y.S.2d 874, 877 (1978). Duty involves the question of "whether the defendant is under any obligation for the benefit of the particular plaintiff." Where a court imposes a duty in a negligence case, "the duty is always the same--to conform to the legal standard of reasonable conduct in the light of the apparent risk." W.P. Keeton, Prosser and Keeton on Torts § 53 at 359 (5th ed. 1984). ² Professor Prosser has summed it up:

In the decision of whether or not there is a duty, many factors interplay: the hand of history, our ideals of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the community "always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind."

Prosser, Palsgraf Revisited, 52 Mich.L.Rev. 1, 15 (1953).

These Plaintiffs argue that there was an "immense" risk that an employee would consume alcohol on the Defendant's premises and then drive, endangering the lives of other drivers. Thirty-five thousand (35,000) cases of beer were stored in the warehouse supervised by Mooney. The quantity was so great that an employee could consume some alcohol and its absence probably would not be discovered. Because the Defendant's business involved transporting beer and wine via motor vehicles, they argue that the potential danger resulting from employees driving was great. Furthermore, the Plaintiffs continue, the burden on the Defendant to prevent this risk was minimal. It had only to prohibit the consumption of its alcohol on the premises such a policy was already required by the company and the Maine State Liquor Commission. ³

The "risk analysis," so urged upon us by the Plaintiffs, however, only results in the imposition of a duty to prevent consumption of Defendant's alcohol on the premises. In this case, the Defendant did not supply Grantham with alcohol, rather he purchased the whiskey and he, himself, brought it onto the premises. Furthermore, Grantham was not visibly intoxicated. Visible intoxication might have put the Defendant on notice that the inebriated employee could cause injury to someone. To impose a duty making the Defendant employer responsible for consumption of any alcoholic beverage on its premises, regardless of the absence of signs of visible intoxication, essentially makes the employer strictly liable for its employees' actions.

The Plaintiffs further argue that the Defendant had a duty to prevent Grantham from operating his vehicle because he was tired. The Defendant's supervisor might have known that Grantham was working a second job; however, there was no evidence that the Defendant was aware of Grantham's schedule for the days prior to the accident and how such a schedule might have affected his ability to drive. An employer is not responsible for gathering information about its employees' personal lives and closely monitoring their behavior to insure that nothing at work converging with those habits...