Massachusetts Supreme Judicial Court Hands Down Disappointing Liquor Liability Case

drunkdriversign.jpgOn July 12, the Supreme Judicial Court handed down a disappointing decision in the much-anticipated case of Lev v. Beverly Enterprises-Massachusetts, Inc., declining to hold an employer liable after its employee became intoxicated at an after-work meeting held at a restaurant and struck a pedestrian on his way home.
In a separate criminal case, the employee was found guilty of operating under the influence.
The facts of the case are simple and many of the minor details played an important part in the opinion’s rationale. On March 14, 2004, a nursing home dietician and his supervisor met at a Chinese restaurant after work to discuss patients’ menus. Over the course of the meeting, the employee had at least two and a half drinks, that he paid for himself. Upon leaving the meeting, the intoxicated employee struck a pedestrian near an on-ramp to Rt. 128 in Newton.
The pedestrian sued the intoxicated driver’s employer (who would be much more likely to be able to pay any judgment than the employee).
The Supreme Judicial Court declined to hold the nursing home liable for two distinct reasons. First, the Supreme Judicial Court said that the doctrine of respondeat superior did not operate to hold the employer liable because, at the time of the accident, the employee was traveling home and employers, in accordance with so-called “going and coming” rule, are not liable for the negligent acts of their employees in traveling to and from work. Second, the Supreme Judicial Court said that the case did not call for an extension or modification that employers are liable for their employees’ intoxication only when the employer controls the supply of the alcohol (as opposed to having mere control over the employee who decides to consume it).
From a public policy standpoint, both of these rationales are lacking. The idea that liability should attach to an employer only when the employer actually supplies the alcohol is misguided. From a public policy standpoint, legal duties should be assigned to the party who can fulfill the duty at the lowest cost/with the greatest ease. In light of this principle, who should we assign the duty to – the restaurant or the employer?
It seems obvious that in this case, the employer (acting through the supervisor) was in the best position to determine whether the employee had become intoxicated and to act to prevent him from driving. This was a one-on-one meeting with the supervisor sitting opposite the employee the whole time.
The supervisor (employer) had the best opportunity to observe the employee and to determine whether he should have anymore to drink. The waiter/waitress, on the other hand, was probably attending to a dozen different tables and interacted with the employee for only a couple of minutes.
Some basic economic theory illustrates that the supervisor’s perspective on things was superior to the restaurants. Why do waiters and waitresses earn tips as opposed to earning a regular hourly salary? One explanation is that it’s simply historical custom. But another explanation, an economic explanation, draws upon the agency problems inherent in a restaurant manager’s supervision of his or her staff. It’s extremely difficult for a manager to distinguish among his or her best wait staff and to determine who’s doing the best job and to reward the best performers with higher wages. The tipping system avoids this problem by putting decisions about pay into the hands of the people with the most detailed information about wait staff performance – the restaurant’s customers.
In this situation, the employee’s supervisor had superior information about the employee’s level of intoxication and a much better opportunity to monitor the employee than the restaurant’s management or wait staff. Accordingly, responsibility for the employee’s intoxication should be allocated to the nursing home rather than the restaurant.
In some situations, such as a large Christmas party, it might make sense to assign legal liability to the party controlling the alcohol supply, rather than the company’s supervisor. In cases like companywide outings and picnics, the sober caterers and bartenders are likely in a far better position to monitor employees than the company’s management and, indeed, the monitoring of the employees is something that the company is paying for. The Supreme Judicial Court’s unwillingness to distinguish a one-on-one or small group meeting from a company Christmas party was disappointing.
The Court’s rather mechanical application of the “going-and-coming” rule was also disappointing. It simply begged the question of where the negligent conduct occurred – was it at the meeting at the restaurant or on the way home when the employee was driving erratically?
We can’t afford to hold liquor liability cases to a different standard than other negligence cases. There are just too many tragedies that could be prevented by stricter legal rules.

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Independence Day Weekend Roundup

flag.jpgBefore leaving for the weekend, here are some topics that I wish I had time to blog about the past week or two:

  • Should Medicare and Medicaid reimburse doctors when they commit medical errors classified as “never events“? Is the categorization of “never events” fair?
  • Would having your doctor warn you about the dangers of texting while driving reduce the number of accidents caused by texting?

Be careful on the roads and with fireworks and have a happy and safe Fourth of July.

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Massachusetts Tort Roundup

There are two Massachusetts personal injury cases to report on this week. One case, Soderberg v. Concorde Greene Condominium Association, modifies Massachusetts law in slip-and-fall cases, making the law less hostile to plaintiffs. The other case, Lev v. Beverly Enterprises-Massachusetts, Inc., has yet to be decided by the Massachusetts Supreme Judicial Court, but may allow corporations to be held liable for injuries to third-parties resulting from alcohol served at company parties.
In Soderberg, the plaintiff, an elderly woman, fell and broke her hip when she slipped on some ice on her way to her condo complex’s parking lot. Very often, such slip-and-fall cases are barred by the Massachusetts “natural accumulation,” rule that says that snow and ice that property owners should not be held liable for snow and ice that has accumulated naturally, only for snow and ice that they have altered in some way (this rule is currently under review in a separate pending appeal).
However, in Soderberg, the natural accumulation rule did not apply because the accumulation of snow and ice in the parking lot was not “natural.”
The trial judge instructed the jury that, if they found the natural accumulation rule did not bar the plaintiff’s recovery, they should go on to consider a separate question: whether the snow and ice was an “open and obvious danger,” that is to say, a condition that was so obviously dangerous that any passerby should have taken pains to avoid it.
On the basis of those instructions from the judge, the jury found against the elderly woman. However, the Massachusetts Appeals Court overturned this verdict, saying that it was error for the jury to consider whether the snow and ice constituted an open and obvious danger. The Appeals Court essentially said that, if the jury concluded that the snow and ice were not the result of natural accumulation, they should not go on to consider whether it was an open and obvious danger. The fact that the accumulation was unnatural and the landlord failed to meet his duty to remedy the condition was all the plaintiff needed to prove. (The Appeals Court indicated that it might reach a different conclusion in cases where the snow and ice did not lie in a well-traveled path).
The Soderberg case can be regarded as a helpful one for plaintiff’s-side personal injury lawyers in Massachusetts.
The other Massachusetts personal injury case of note this week was Lev v. Beverly Enterprises-Massachusetts, Inc. The Supreme Judicial Court heard oral arguments in the case this week.

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South Shore Mother Whose Daughter Was Overserved Alcohol Files Wrongful Death Lawsuit: Part II

In yesterday’s blog post, we discussed why the estate of Taylor Meyer might be able to prevail in its wrongful death claim, or at least why the case might be able to reach a favorable settlement.
In today’s post we will discuss some of the challenges that the Meyer estate will face under Massachusetts law. The first challenge was alluded to by Kathi Jean Taylor who said at the press conference: “No one forced [my daughter Taylor] to drink alcohol that night,” and that Taylor “absolutely” bears some responsibility for her accident.
These statements raise another possible issue here: comparative negligence. Under the Masachusetts comparative negligence statute, if the party that is injured bears more than 50 percent responsibility for her injuries, she is not allowed to recover anything.
Comparative negligence will definitely be an argument that the defense lawyers use in this case. But Massachusetts courts have been reluctant to fault minors for their consumption of alcohol. In the important case of Tobin v. Norwood Country Club, 422 Mass. 126 (1996), the Massachusetts Supreme Judicial Court, emphasized that minors “are thought to be peculiarly susceptible to the effects of alcohol and less able to make decisions about what amount of alcohol they may safely consume in various situations.” (The court in that case went on to conclude that a driver who had been injured by a minor who consumed alcohol at a country club could sue the country club for his injuries.)
In light of the fact that Massachusetts courts have been reluctant to heap blame on minors in liquor liability cases, comparative negligence might not turn out to be such a big issue in the Meyer case. A judge might refuse to instruct a jury on comparative negligence in light of the forgiving tone of some of the case law.
A much more effective defense in this case – at least for the homeowner defendants – will be a lack of causation defense. In any Massachusetts case for negligence, the plaintiff must prove not only that the defendant was negligent, but that the defendant’s negligent actions caused her injuries.
So, for example, if a drunk driver is careening down the street at 100 mph per hour but brakes to a stop before coming into contact with you, his actions are negligent but you will not have any claim against him (unless you suffer very serious emotional distress) because his negligence did not cause your injuries.
Consequently, the adult party hosts in this care are likely to get a lot of mileage out of the legal argument that their actions, even if negligent, did not cause Taylor’s death. The adult defendants in this case will likely argue that Taylor’s death was attributable not to her consumption of alcohol but to the intervening cause of the teenagers who (apparently) purposefully misdirected Taylor into the swampland as some sort of joke.
They will likely argue that the actions of the teens who allegedly directed Taylor into the swampland were not foreseeable and that therefore they should not be held liable.
Who will prevail? We will see when this case reaches its ultimate conclusion – whether that be a pretrial settlement, a jury verdict, or an appeals court decision.
Hopefully, whatever the resolution in this case, it will discourage irresponsible drinking, incentivize parents to better supervise their children and reduce tragic deaths like Taylor’s.
Mother sues party mates of dead teen, boston.com, January 14, 2010
Mother files lawsuit after daughter’s drowning death at party, bostonherald.com, January 13, 2010

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South Shore Mother Whose Daughter Was Overserved Alcohol Files Wrongful Death Lawsuit: Part I

A Plainville mother, whose daughter’s alcohol-related death made headlines throughout Massachusetts in 2008, announced, at a press conference held on Thursday, that she and her lawyer had filed a wrongful death lawsuit in Norfolk Superior Court against several people who provided the teenage girl with alcohol on the night of the girl’s death. The lawsuit raises a number of legal questions pertaining to liquor liability that have not been settled by Massachusetts courts.
According to news reports of the lawsuit, Taylor Meyer, a seventeen year old girl, drowned in a Norfolk, MA swamp after drinking in several homes, including a home where a mother allegedly made alcohol available to the teens. Eventually Taylor wound up at a bonfire party, where she asked several other teens how to get from the remote location where she was in the woods back to her home. The teenagers apparently knowingly and cruelly directed the Taylor into the swampland surrounding the clearing. An autopsy of Taylor revealed a high blood alcohol level.
Taylor’s mother, Kathi Jean Meyer, noted at Thursday’s press conference that she did not expect Taylor’s estate to recover a large amount of money out of the lawsuit and that the lawsuit was a matter of principle that would hopefully help raise awareness of the dangers of alcohol. Kathi Jean may be correct that the wrongful death lawsuit she filed faces an uphill climb. However, there is also reason to believe that this case might end in a large settlement. The strengths of the Meyer case will be the subject of today’s blog post.
Liquor liability in Massachusetts can basically be divided into two categories: dram shop liability and social host liability. Dram shop liability is the kind of liability that attaches to commercial establishments, such as bars and restaurants, that serve alcohol. Social host liability is the kind of liability that attaches to people who serve alcohol at private parties. (The lines here can be kind of fuzzy – for example, a corporate picnic might be a setting where the principles of dram shop liability apply). The Meyer case primarily raises issues of social host liability.
Massachusetts law in the area of social host liability is surprisingly unsettled and hostile to plaintiffs. Massachusetts courts have consistently ruled that “social hosts” are not liable if the person drinking the alcohol injures him or herself, even if the person who consumed the alcohol is an adult who is below legal drinking age. Hamilton v. Ganias, 417 Mass. 666 (1994); Sampson v. MacDougall, 60 Mass. App. Ct. 394 (2004). The Meyer case presents a set of facts that Massachusetts courts have not yet pronounced upon: whether adult social hosts are liable for the injuries of minor guests to whom they serve alcohol. Since Taylor Meyer was seventeen at the time of her death (a minor), the Massachusetts precedents holding that social hosts are not liable for injuries to their adult, but underaged guests, would not apply.
(A couple of side notes: while Massachusetts courts have held that social hosts are not liable for injuries to their guests caused by alcohol that they serve their guests, the same rules do not apply to injured third parties. So while a social host might not be liable to their guest for their guest’s injuries, if the guest gets behind the wheel and injures a third party, the host may be liable to that third party for that third party’s injuries.)
Since Massachusetts courts have not ruled on whether a party host may be held liable for injuries to a minor guest resulting from serving that minor guest alcohol, any adult hosts who served Meyer alcohol might have an incentive to settle early on before the court creates a new legal rule clearly defining their responsibility. In other words, even if their legal liability is not clearly established, the adult party hosts might want to pay out before the court makes rulings that might establish their liability and make the plaintiff estate demand more money.
Most likely the adult defendants in this case have assets, like homes and retirement savings, that could all be lost if a judgment were entered against them. Meyer’s lawsuit against the defendants is a wrongful death action. The Massachusetts wrongful death statute, Massachusetts General Laws Chapter 229 Section 2, entitles plaintiffs to recover the net lifetime earnings of their deceased family member. In a case involving the death of a seventeen year old girl, the net lifetime earnings would, by any conservative estimate, run into the millions of dollars. In addition, the Massachusetts wrongful death statute allows for plaintiffs to recover punitive damages (punitive damages are generally not available under Massachusetts law). These punitive damages could multiply a multi-million dollar judgment based on lifetime income and lost companionship by a factor of ten or more without a danger of the verdict being struck down on appeal.
Since a judgment of that size would prove ruinous to all but the wealthiest defendants, the defendant adults in this case might have an incentive to settle even if there are questions about their legal liability.
Even if a plaintiff’s attorney had doubts about recovering a judgment of that size from the defendants’ personal assets, a plaintiff’s attorney might still pursue the case because of the possibility of recovering from homeowner’s insurance policies. This is another area where Massachusetts law is unsettled. Massachusetts courts have never ruled on whether a typical homeowner’s insurance policy covers non-automobile-related injuries arising from a party where an underaged teen was served alcohol. However, in one such case, a Massachusetts court ruled that the insurance company had at least a “duty to defend” the homeowner parents – that is the court required the homeowner’s insurance policy to pay for lawyers to defend the family. Worcester Mutual Insurnace Co. v. Marnell, 398 Mass. 240 (1986).
To sum up today’s post, the unsettled questions surrounding social host liability under these circumstances, the potential for astronomical damages and the potential recovery from insurance companies are all legal weapons that Taylor Meyer’s estate can leverage to (ideally) recover a large settlement.
What Kathi Jean Meyer is doing in this case is a public service. This case has the potential to change Massachusetts law in the area of social host liability. If Meyer succeeds in making law of social host liability stricter in Massachusetts, she will likely help reduce the number of senseless alcohol-related deaths in Massachusetts.
Many mothers whose children’s deaths have been caused by alcohol, such as the mothers involved with Mothers Against Drunk Driving, have focused on criminal sanctions directed at the intoxicated person. And, by focusing on criminal law, they have succeeded in reducing alcohol-related deaths.
Perhaps now however such activists should concentrate on the civil law as an avenue for reducing alcohol-related tragedies such as Taylor Meyer’s death. Strengthening and expanding social host liability stands a good chance of reducing alcohol-related accidents because social hosts often are sober while their guests are not. The possibility of a sober social host putting the brakes on the actions of an inebriated guest would be a welcome sight in Massachusetts.
Tomorrow, in Part II of this blog post, we will discuss some of the legal challenges that the Meyer case will face.
Mother sues party mates of dead teen, boston.com, January 14, 2010
Mother files lawsuit after daughter’s drowning death at party, bostonherald.com, January 13, 2010

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