Whether an employer can be liable for a drunk driving accident caused by an employee on the way home from a business meeting.

The defendant, Beverly Enterprises, employed John Ahern as a cook. Taking the facts in the light most favorable to the plaintiff, Ahern’s supervisor asked him to come to a nearby restaurant after work to discuss upcoming menus. While there, Ahern bought drinks for both himself and the supervisor, at her suggestion. The supervisor knew that Ahern had twice been convicted of operating under the influence, some fifteen and twenty years earlier. Ahern then left the restaurant, drove toward his home, and struck and seriously injured a pedestrian. He was visibly drunk at the scene of the accident.

The victim’s claims for negligence were dismissed at summary judgment. The Appeals Court affirmed, with one justice dissenting. 74 Mass. App. Ct. 413 (2009).

1. Respondeat Superior. The plaintiff argues that Beverly is liable for Ahern’s own negligence, under one of two theories: (1) that he remained within the scope of employment on his drive home, because he was traveling from a different location than usual at his employer’s request; or (2) that he was negligent, when he was at the restaurant and firmly within the scope of employment, by drinking with keys in his pocket as a repeat drunk driver. The Appeals Court briefly dismissed the claim on the basis that Ahern’s drive home was outside the scope of employment.
2. Direct Negligence/Host Liability. The plaintiff argues that Beverly was directly negligent in the failure of its representative, Ahern’s supervisor, to control his drinking or attempt to dissuade him from driving. The Appeals Court split on this question. Two justices held that a host can only be liable for negligently permitting the consumption of alcohol where they have control over the liquor itself. A dissenting justice argued that a host could also be liable where they have control over the person drinking, as an employer would for an employee within the scope of employment.

The respondeat superior claim is weak; it is difficult to argue that Ahern was within the scope of employment when driving home from a restaurant near his workplace, or that his action of “imbibing while the car keys were still in his pocket” is sufficient on its own to support a finding of negligence.

The direct negligence claim is more interesting.  The distinction endorsed by the Appeals Court is that an employer who actually provides alcohol to employees can be held liable for their negligent acts after leaving the place of employment; an employer who merely fails to reasonably discourage an employee from drinking on the job cannot.  That distinction can perhaps be justified – but not on the basis that the employer lacks control over the employee’s actions, which is the traditional basis for limiting host liability to those with control over the alcohol itself.