Lev v. Beverly Enterprises-Massachusetts, Inc.

Majority - Spina, J.

No, an employer is generally not vicariously liable for an employee's negligent actions that cause injury to a third party where the employee became intoxicated at an off-premises work-related meeting and then caused an accident while driving home, because the employee's travel home falls outside the scope of employment under the 'going and coming' rule. The court affirmed summary judgment for Beverly, holding that Ahern was not acting within the scope of his employment when he struck Lev. The 'going and coming' rule generally excludes travel to and from work from the scope of employment. While the meeting at South Pacific might have been work-related, Ahern's subsequent drive home was "no different than traveling home after the completion of his shift" at the primary workplace, Heathwood. The court emphasized that the tort liability 'scope of employment' test is narrower than the 'course of employment' test used in workers' compensation cases, citing Fredette v. Simpson. Therefore, Ahern’s negligent actions could not be imputed to Beverly under respondeat superior. No, an employer does not owe a duty of care to a third party injured by an intoxicated employee under an employer-host liability theory if the employer did not furnish or control the alcohol. The court further held that Beverly was not liable under an employer-host theory or traditional negligence principles. For employer-host liability, which mirrors social host liability, a duty of care arises only when the host controls the alcohol provided to guests, citing McGuiggan v. New England Tel. & Tel. Co. and Cremins v. Clancy. Here, Ahern purchased and paid for his own drinks, served by a bartender at South Pacific, not by Pacitti or Beverly. Even if Pacitti knew of Ahern's drinking and intoxication, the lack of control over the alcohol was dispositive, citing Kelly v. Avon Tape, Inc. No, an employer does not owe a duty of care to a third party injured by an intoxicated employee under traditional negligence principles merely because of a 'special relationship' between employer and employee or an internal policy. Regarding traditional negligence, the court reiterated the general rule that there is no duty to control a third person's conduct to prevent harm unless a 'special relationship' exists. Such a relationship arises when a defendant reasonably could foresee the need to take affirmative action to protect the plaintiff and could anticipate harm from failure to do so, citing Irwin v. Ware. The employment relationship here did not create such a duty, as Ahern's employment did not 'facilitate his ability to harm the plaintiff' in the manner contemplated by the Restatement (Third) of Torts. Finally, Beverly's internal alcohol policy, prohibiting consumption while conducting company business off-premises, did not independently create a duty of care to the general public. While a policy violation can be evidence of negligence where a duty already exists, it does not create a duty where none exists at common law. The policy's purpose was to protect Beverly's residents, associates, and visitors, and patient care, not the public at large.