Lev v. Beverly Enterprises-Massachusetts, Inc.

McHugh, J.

(dissenting). I respectfully dissent. In my view, general principles of tort law should have led to denial of the *423summary judgment motion, for the cases on which my thoughtful colleagues rely do not compel the result they reach.

When the present record is viewed, as it must be at this stage, in the light most favorable to the plaintiff and without regard to the motion judge’s reasoning, see, e.g., Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991); Clean Harbors, Inc. v. John Hancock Life Ins. Co., 64 Mass. App. Ct. 347, 357 n.9 (2005), it appears that John Ahem worked as a chef at a nursing home in Chestnut Hill, owned and operated by the defendant, Beverly Enterprises-Massachusetts, Inc; (Beverly). On the day of the accident, Ahern’s supervisor, Lynda Pacitti, arranged to meet him at the South Pacific restaurant after his shift ended to prepare plans for a public health survey that was to take place the following week. Pacitti and Ahem had worked together at the nursing home for more than twenty-five years. Pacitti knew Ahem well and knew that he lived in Tewksbury, some distance from the nursing home. Although the two had been coworkers for the first fifteen years they worked together, Pacitti had been Ahern’s supervisor for the ten years preceding the accident and, as such, had the authority to discipline Ahem and to fire him if necessary.

The South Pacific restaurant was “a couple of miles” from the nursing home. Pacitti and Ahem met there at approximately 5:45 p.m., though Ahem had arrived about five minutes earlier. The upcoming survey was important to Beverly and to Pacitti, so she arrived with nursing home menus in hand and discussed those menus and other business matters with Ahem during the approximately one hour and fifteen minutes their meeting lasted. Their discussion during the meeting focused entirely on business topics. It was, in Pacitti’s view, a productive business meeting.

During the meeting, both Pacitti and Ahern drank alcoholic beverages. Ahem, who had consumed no alcoholic beverages that day prior to the meeting, chose vodka and soda water. Whatever alcohol he drank that evening, he drank in Pacitti’s presence. Ahem had those drinks despite the fact that he planned to drive home after the meeting, a fact of which Pacitti was aware, and despite the fact that he had two prior convictions for drunken driving, one of which caused him to miss several weeks of work at Beverly so that he could attend inpatient rehabilitation.1

*424The drinking in which Pacitti and Ahem engaged also occurred despite a section of Beverly’s human resources management policy and procedures manual which stated, in pertinent part, that employees were

“prohibited from possessing, consuming, selling, distributing, or being under the influence of alcohol on company premises or while conducting company business off company premises” (emphasis supplied).

Ahern left the restaurant at approximately 7:00 p.m. Eight minutes later, he struck the plaintiff, a pedestrian who was crossing a street near an on-ramp to Route 128, causing serious injuries. Officers arriving at the scene smelled alcohol on Ahern’s breath and found him glassy-eyed, slurring his speech, and having difficulty maintaining his balance as he walked. He failed field sobriety tests, in the process switching from English to what he said was French as he tried to race through the alphabet and, when instructed to use English alone, failing to make it past the letter “M.” After a jury trial, he was convicted of operating under the influence. A jury would be warranted in concluding that the gross deficits in Ahern’s ability to navigate did not manifest themselves for the first time during the eight minutes between his departure from the restaurant meeting and the accident, but became visible as the meeting, and the drinking, progressed.

There is, to be sure, evidence that points in a direction different from the direction the foregoing narrative suggests. Pacitti, for example, testified that Ahem had only one and one-half drinks that evening and was completely sober and unimpaired when he left the meeting at 7:00. Nevertheless, if the plaintiff persuades a jury at trial that the narrative is an accurate reflection of what happened on the evening of the accident, then I believe that ordinary principles of respondeat superior permit the jury to return a verdict against Beverly.

Under the doctrine of respondeat superior, Beverly is liable for the conduct of its employees while they are acting within *425the scope of their employment. See Dias v. Brigham Med. Assocs., 438 Mass. 317, 319-320 (2002), citing Restatement (Third) of Agency § 2.04 (Tentative Draft No. 2, 2001). Apart from her drinking, there can be no doubt that Pacitti was acting within the scope of her employment while meeting with Ahem. She called the meeting to discuss matters of importance to Beverly and spent the entire meeting doing just that.2

That Pacitti may have been acting for her own purposes when she drank and permitted Ahem to drink does not mean that she was acting outside the scope of her employment.

“[Cjonduct of an agent is within the scope of employment if it is of the kind he is employed to perform . . . ; if it occurs substantially within the authorized time and space limits . . . ; and if it is motivated, at least in part, by a purpose to serve the employer .... See Restatement (Second) of Agency § 228 (1958). The fact that the predominant motive of the agent is to benefit himself does not prevent the act from coming within the scope of employment as long as the act is otherwise within the purview of his authority.”

Wang Labs., Inc. v. Business Incentives, Inc., 398 Mass. 854, 859-860 (1986).

As for negligence, Pacitti had supervisory power over Ahem and could have chosen to enforce Beverly’s rule prohibiting consumption of alcohol at off premises business meetings. And *426whatever the case in other jurisdictions, it is clear that in Massachusetts “[a]n employee’s violation of his employer’s rules, intended to protect the safety of third persons, is evidence of the employee’s negligence, for which the employer may be held liable.” Commonwealth v. Angelo Todesca Corp., 446 Mass. 128, 138 (2006). Beverly’s “no alcohol” rule doubtless stemmed in part from a belief that sober employees make better decisions, but a jury could surely conclude that the rule was also designed to protect the safety of others from harm caused by intoxicated Beverly workers. A jury, therefore, could conclude that Pacitti was negligent in failing to enforce that rule, particularly in the face of what it could infer were visible signs of Ahern’s intoxication.

Finally, if a jury were to find facts the present record permits them to find, I cannot agree with the majority that the “social host” cases bar imposition of liability. The cases barring liability have differentiated between the host who can and the host who cannot regulate the supply of liquor. Thus, in Ulwick v. DeChristopher, 411 Mass. 401, 406 (1991), the court said that “[pjolicy considerations support the imposition of a duty only in cases where the host can control and therefore regulate the supply of liquor. A host who furnishes liquor at a social gathering can deter a guest from becoming intoxicated.” Similarly, in Mosko v. Raytheon Co., 416 Mass. 395, 402 (1993), the court opined that “[ojnly when a host controls the liquor supply is it reasonable to assume that a host has the ability to monitor the guests’ alcohol consumption.” And in Kelly v. Avon Tape, Inc., 417 Mass. 587, 589 (1994), the court, citing its earlier decisions, said that the defendant had no duty to protect members of the public from the consequences of its employee’s intoxication because it had not furnished the alcohol the employee consumed.

All of those cases are premised on the difficulty, if not the impossibility, of a social'host’s exercise of control over the behavior of a social guest. As the court observed in Ulwick v. DeChristopher, 411 Mass. at 406:

“The ability effectively to control a guest’s excessive drinking is not present when the liquor belongs to the guest. Therefore, to impose a supervisory duty on social hosts to *427police the conduct of guests who drink their own liquor presents a number of practical difficulties. Hosts in these circumstances might be left with little alternative than to resort to physical force in order to discourage further drinking or to try to eject the guest, a solution that in many cases will aggravate the situation and put the drunk driver where he should not be — behind the wheel of a car.”

Inability to control the guest leaves control of alcohol as the host’s only mechanism for preventing intoxication. A social host with no control of the alcohol supply and no control over the social guest should not, therefore, be saddled with the consequences of the guest’s intoxication.

Implicit in that analytical framework, however, is that control of the alcohol supply is one of two obvious ways to prevent intoxication. The other is control of the consumer. A jury could conclude that, unlike the social host, the employer conducting a business meeting can control the employee’s behavior, particularly where, as here, the employer’s ability to control that behavior is evidenced by promulgation of an anti-alcohol rule purporting to do so. Because of the critical difference in the dynamics of the relationship between social host and social guest, on the one hand, and employer and employee, on the other, I do not believe that the social host cases are a bar to Beverly’s liability. See generally, e.g., O’Gorman v. Antonio Rubinaccio & Sons, 408 Mass. 758, 762-763 & n.4 (1990), and cases cited.

In sum, I am of the opinion that the motion for summary judgment should have been denied and the case against Beverly set for trial.

The plaintiff argues that the record is sufficient to support an inference that *424Beverly, through Pacitti or others, had knowledge of Ahern’s prior alcohol problems. I make no judgment one way or another on that score, believing that knowledge of those prior difficulties is not essential to the result I believe the record otherwise compels.

It is no answer to say that the negligent act was Ahern’s decision to drive while intoxicated and Beverly is not responsible for that decision. See, e.g., Clickner v. Lowell, 422 Mass. 539, 542-543 (1996) (“Travel to and from home to a place of employment generally is not considered within the scope of employment”). The focus should be on Pacitti’s acts and omissions, not Ahern’s. A jury could conclude that it was just as reasonable to foresee that an intoxicated Ahem would drive away from the meeting as it was to foresee that an intoxicated patron would drive away from a bar where he had been over-served, see, e.g., Cimino v. Milford Keg, Inc., 385 Mass. 323, 328-331 (1982), or that drunken passengers would alight from a limousine and drive home from the dropping off point. See Commerce Ins. Co. v. Ultimate Livery Serv., Inc., 452 Mass. 639, 646-647 (2008). Therefore, while it was undoubtedly negligent, and worse, for Ahem to drive while intoxicated, Ahern’s negligence does not necessarily sever the causal connection between what a jury could find was Pacitti’s negligence in permitting Ahem to drink and the resulting accident.