A state appellate court recently ruled that an employer is not liable for the injuries caused by a drunk driving accident involving one of its workers. According to the Massachusetts Appeals Court, although the worker became intoxicated while meeting with his supervisor at a restaurant, his employer did not have a duty of care under a theory of employer host liability. Lev v. Beverly Enterprises-Massachusetts, Inc., No. 08-P-58, Massachusetts Appeals Court (June 18, 2009).

Factual Background

John Ahern was employed as a chef at a nursing home, which was owned and operated by Beverly Enterprises-Massachusetts, Inc. (BEM). On March 11, 2004, Ahern met with his supervisor, Lynda Pacitti, at the South Pacific Restaurant. During the meeting, Ahern and Pacitti both had alcoholic beverages while discussing work-related matters. Ahern left the restaurant at 7:00 p.m. and struck Charles Lev while driving home in his car. Ahern was arrested and convicted of operating while under the influence of intoxicating liquor.

Lev sued BEM for serious injuries he sustained as a result of the accident. A Superior Court judge entered summary judgment for the company and Lev appealed.

Legal Analysis
The Massachusetts Appeals Court first considered whether BEM could be held liable under the employer host theory of liability. Based on the lead cases on the issue, the court ruled 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.” Because the employer did not control or furnish the alcohol consumed by Ahern, the court ruled, BEM was not liable on the employer host theory of liability.

The court next addressed an issue not yet faced by Massachusetts appellate courts – whether BEM’s employment handbook policy prohibiting employees from drinking alcohol on company premises or while conducting company business off company premises had any effect on employer host liability. The court found that Restatement sections 315 and 317 did not impose a duty of care on an employer. Moreover, an employer policy prohibiting drinking on the job does not create a “special relation” between the employer and the employee requiring the employer to prevent the employee from harming others. It also doesn’t confer on the employer the ability to control the employee in terms of the “outside world.” The court concluded that “[s]imply issuing a company policy against drinking on the job” does not give rise to employer host liability for injuries sustained by a third party.

Finally, the court rejected the argument that BEM is responsible under the doctrine of respondeat superior. According to the court, travel to and from home to a place of employment is not considered “within the scope of employment.” Since Ahern was driving home in his own vehicle and was not engaged in conduct for which he was employed by BEM, the court ruled that the company cannot be held vicariously liable under the doctrine of respondeat superior. The court, thus, affirmed judgment in BEM’s favor.

Practical Impact

According to Mark Burak, a shareholder in Ogletree Deakins’ Boston office: “The Lev case reinforces the notion that in order to avoid employer host liability employers should not furnish alcohol to employees. If they choose to do so (and many employers will), the employer itself should not “control” the provision of alcohol but rather outsource that function to trained professional servers.”  Burak also noted “despite a strong dissent, the Lev case also supports employer efforts to limit or eliminate workplace consumption of alcohol through employer policies and, in a victory for employers, did not in effect punish BEM for having such a policy.  The Lev case also should remind employers that handbook policies, such as BEM’s policy against alcohol consumption, should be carefully drafted to avoid inadvertently creating legal obligations, such as the one the plaintiff sought to impose in this case.”

Note: This article was published in the August 2009 issue of the Massachusetts eAuthority.

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