Section Review

Our duties of care: Liability for injuries caused by impaired drivers

Injuries and deaths caused by negligent driving are tragically frequent headlines in the news, and drunk driving in particular remains a leading cause of the public's concern for highway safety. Our Legislature has responded over the years by not only imposing stricter penalties for drunk driving, but also for those who contributed to the fact that the individual was driving while intoxicated. See e.g., M.G.L. c. 90, §12 (penalties for permitting person with ignition interlock restriction to operate motor vehicle without devise).

Considering legislative enactments in conjunction with the evolution of common law, it is evident that the public includes non-drivers among those who should be held responsible for the damages caused by intoxicated drivers. In fact, several times over the past year, the courts have addressed critical questions concerning the scope of liability for injuries caused by impaired drivers.1 As with all common law, the scope of liability has evolved over the years as new questions are presented. This article is an evaluation of the duties of care presently recognized and is intended to serve as a guide for those attorneys who bring or defend claims arising from injuries caused by an impaired driver - generally those who were intoxicated.

I. The duty of care

The nature of the alleged duty of care is a critical factor to consider when evaluating a case involving potential liability for injuries caused by a third party, an impaired driver. In the majority of cases, the duty of reasonable care asserted by plaintiffs is a duty to prevent an already intoxicated individual from having access to alcohol. Consequently, courts have focused on the question of whether the defendant had the ability to control access to the alcohol.2 However, in other cases, the alleged duty is the duty to warn3, and/or the defendant's ability to take reasonable care to ensure the individual will not drive.4

The following is a discussion of the recognized claims of liability where the duty of care is dependent upon the defendant's ability to control access to alcohol. Significantly, the meaning of control is construed narrowly. The Supreme Judicial Court distinguishes between control based on the defendant having furnished the alcohol versus simply providing his guest with access to it. A duty exists in the former scenario but not in the latter.

A. Liability arising from defendant's control of alcohol

1. Commercial establishment: Injuries caused by intoxicated adult

A commercial establishment which provides alcohol to an intoxicated adult customer is liable for injuries caused by the customer if the establishment knew or reasonably should have known that he was intoxicated and nonetheless provided the alcohol.5 However, the standard is different if the plaintiff was himself the intoxicated driver, in which case the establishment is only liable if it knowingly or intentionally disregarded the obvious risk of serving alcohol to the intoxicated customer.6

2. Commercial establishment: Injuries caused by intoxicated minor

A commercial establishment is liable for injuries caused by an intoxicated minor if the establishment negligently provided the minor with alcohol, regardless of whether the proprietor knew or should have known the minor was intoxicated.7 The establishment's breach is not its sale of alcohol to an already intoxicated individual, but rather, the sale of alcohol to an individual it knew or reasonably should have known was a minor.8 The theory is that, in light of the statutes adopted by the Legislature, it is evident that society believes minors lack the "maturity and responsibility [to] partake of alcoholic beverages" safely and it is reasonably foreseeable that, if given access, a minor will become intoxicated and fail to act responsibly.9

3. Social host: Injuries caused by intoxicated adult

A social host is liable for harm caused by an adult guest if the host knew or should have known that the guest was intoxicated and nevertheless "gave him or permitted him to take an alcoholic beverage."10 The duty of care giving rise to possible liability is based upon the host's ability "to control the liquor supply" and thus does not exist unless "the alcohol being consumed belongs to the host."11 The duty therefore includes instances where the host gives the liquor to his guest outside the home.12 The scope of liability for social hosts is limited if the plaintiff was himself the intoxicated driver. In fact, the social host "is under no duty to prevent [the guest] from injuring himself."13

4. Social host: Injuries caused by an intoxicated minor
Just as with adults, a social host is liable for injuries caused by an intoxicated minor if the social host provided the alcohol and knew or reasonably should have known that the minor was intoxicated.14 The SJC expressly rejected attempts to import the rule applicable to minors in a commercial context (see above) into the social host context, and thus a breach does not occur unless the host knew or should have known of the intoxication.15

5. Employer: Injuries caused by intoxicated employee

An employer is liable for injuries caused by its intoxicated employee only if the employer provided the alcohol to the employee and knew or should have known the employee was intoxicated.16 Just as the concept of "providing" alcohol is construed narrowly and synonymous with "belonging to" in the context of social hosts, employers are protected from liability even if the employer allowed alcohol to be stored on its property and was aware of its consumption by the employee.17 The SJC has rejected respondeat superior liability in instances where the alcohol is consumed during an employer-sponsored social function18, but it has not yet addressed whether alcohol consumed during a business meeting could give rise to such liability. However, a divided panel of the Appeals Court held in favor of the defendant-employer in such a circumstance.19

It is worth noting that in the context of social hosts and employers, the analytical distinction between control based upon the defendant's ownership of the alcohol and simply providing access to alcohol seems weak. Hosts and employers can control an individual's access to alcohol on their premises, regardless of whether the host or employer provided it, by ordering the guest or employee to leave the premises. If hosts and/or employers know the alcohol is on the premises, then the more logical question is whether they knew or should have known the individual was intoxicated and - as with commercial establishments - continued to provide access to the alcohol. However, for reasons of public policy, the SJC has thus far adhered to the distinction.20

B. Liability arising from defendant's corporate or professional status

The following cases concern liability for injuries caused by impaired drivers arising from the nature of the defendant's corporate or professional status.

1. Injuries caused by intoxicated customer of private transportation service

A private transportation service owes a duty of reasonable care, in instances where there is a commercial or contractual arrangement for hire, to avoid discharging a passenger if the company knew or should have known the passenger was intoxicated and, upon discharge, likely to drive a vehicle.21 In coming to its decision, the Court noted that private transportation services in the business of transporting persons consuming alcohol are in "a primary position to use care to avoid leaving an intoxicated passenger at a location where it is likely the passenger will drive."22 This reasoning is similar to that which supported a duty of care in instances where the alleged breach was the sale of alcohol to an intoxicated individual.23 It should be noted that three justices concurred in the result in Commerce, but believed that the livery service could be liable for permitting the passenger to consume alcohol when it "knew or should have known of the passenger's intoxication and thereafter permitted him to consume alcohol."24

2. Liability arising from professional duties of defendant

In Irwin v. Town of Ware, 392 Mass. 745, 762-765 (1980), the SJC held that a police officer is liable for injuries caused by an intoxicated driver whom the officer knew or reasonably should have known was intoxicated but failed to remove from the highway. The SJC's theory of liability was based upon the "special relationship" between and the plaintiff and the defendant, but this has not proven to be a particularly instructive characterization. Other than Irwin, courts have been reluctant to impose liability based on a "special relationship."25 Given the poor history of attempted reliance upon a "special relationship," it is more helpful to consider the significance of the defendant's professional duties to the court's decision.

The Court held that statutes granting police officers "privileges and duties" with respect to intoxicated drivers evidenced "a legislative intent to protect both intoxicated persons and other users of the highway" and that the "calamitous consequences" of intoxicated driving were "all too predictable."26 Thus, the requisite requirements to establish a duty of care under basic common law principles were satisfied: the police officer "reasonably could foresee that he would be expected to take affirmative action to protect the plaintiff and could anticipate harm … from his failure to do so."27

In Coombes v. Florio, 450 Mass. 182, 186-187 (2007), a case concerning a prescription drug, in a plurality opinion, justices Ireland, Spina and Cowen held that a doctor owed a duty of care to a member of the public to warn a patient of the side effects of prescribed medication. The justices found that a physician owed a duty of care to the plaintiff to warn the patient of the dangers of driving (assuming there are some) while taking a prescribed medication. The duty to warn "about the effects of the treatment" was owed to "all those foreseeably put at risk by his failure to warn."28 Justices Greaney, Marshall and Cordy limited the duty to instances where the doctor had "knowledge of a danger that may be posed to others from a patient's decision to operate a motor vehicle while under the influence of prescribed medication."29 The majority of justices however, noted the significance of the defendant's status as a "medical professional" and the "physician-patient relationship," in which a duty to warn the patient already existed.30

Considering these two cases together, it is evident that the SJC considers professional duties and responsibilities, whether imposed by statute or common law, as relevant to the question of whether the defendant owed the plaintiff a duty of care.

II. Proximate cause

As noted earlier, this article concerns recognized duties of care which may give rise to liability for injuries caused by an impaired driver. However, the following rule with respect to causation is worth noting: A plaintiff must of course establish that the failure to take reasonable care was the proximate cause of the plaintiff's injuries. However, to satisfy this requirement, it is not necessary to show that the defendant knew or should have known that the particular driver at fault would drive a motor vehicle.31 The "universal use of automobiles and the frequency of accidents involving drunken drivers are matters of common knowledge."32 So long as the plaintiff was injured "as a result of being struck by a vehicle improperly operated by the intoxicated patron, due to his intoxication," the foreseeability necessary to establish proximate cause is evident.33

III. Conclusion

It is of course axiomatic that liability imposed through common law for injuries caused by a third party will evolve over time. Therefore, as our courts address the thorny questions of potential liability for injuries caused by texting, or the influence of medications, it is useful to consider the ancestors to these new questions of liability. In addition, it is a sad fact that cases involving injuries caused by intoxicated drivers will continue to arise and that these more established rules will apply.

Notes

1.  See Commerce v. Ultimate Livery Service, Inc., 452 Mass. 639 (2008); Lev v. Beverly Enterprises-Massachusetts, Inc., 74 Mass. App. Ct. 413, 416 (2009); and Brody v. Wheaton College, 2009 Mass. App. Unpub. LEXIS 129, *5-6 (April 16, 2009). See also, Coombes v. Florio, 450 Mass. 182 (2007) (driving under influence of pharmaceutical product).

2.  See Cremins v. Clancy, 415 Mass. 282, 293 (1993).

3.  Coombes v. Florio, 450 Mass. 182 (2007) (pharmaceutical product.)

4.  Commerce v. Ultimate Livery Service, Inc., 452 Mass. 639, 646-647 (2008); Irwin v. Town of Ware, 392 Mass. 745 (1980).

5.  Cimino v. The Milford Keg, Inc., 385 Mass. 323 (1982); Adamian v. Three Sons, Inc., 353 Mass. 498 (1968).

6.  Manning v. Nobile, 411 Mass. 382, 387-389 (1991); G.L. c. 231, §85T.

7.   Michnik-Zilberman v. Gordon's Liquor, Inc., 390 Mass. 6, 10 (1983).

8.  Tobin v. Norwood Country Club, 422 Mass. 126, 135 (1996).

9.  Michnik-Zilberman, 390 Mass. at 10. See also, Tobin v. Norwood Country Club, 422 Mass. at 135 (serving liquor where minors are present is "fraught with foreseeable risk.")

10.   McGuiggan v. New England Telephone and Telegraph Co., 398 Mass. 152, 162 (1986).

11.   Ulwick v. DeChristopher, 411 Mass. 401, 406 (1991).

12.   Makynen v. Mustakangas, 39 Mass. App. Ct. 309, 311-313 (1995) (finding host who purchased drinks for his guest at a bar liable.)

13.   Manning v. Nobile, 411 Mass. 382, 389-390 (1991) (emphasis added).

14.   Cremins v. Clancy, Jr., 415 Mass. 289, 295-296 (1993).

15.   Id. at 295.

16.   Mosko v. Raytheon Company, 416 Mass. 395, 397 & 402 (1993) (holding rules of social host liability apply to employer-employee relationship).

17.   Kelly v. Avon Tape, Inc., 417 Mass. 587, 589 (1994).

18.   Mosko, 416 Mass. at 399-400.

19.   Lev v. Beverly Enterprises-Massachusetts, Inc., 74 Mass. App. Ct. 413, 422 & 424-425 (2009).

20.   McGuiggan, 398 Mass. at 160; Ulwick, 411 Mass. at 405-406.

21.   Commerce v. Ultimate Livery Service, Inc., 452 Mass. 639, 646-647 (2008).

22.  Id. at 650.

23.   Tobin, 422 Mass. at 135 (business supplied the "substance that creates the risk, and it has the experience and opportunity to take steps to minimize it.")

24.  Commerce, 452 Mass. at 657 & 660 (Cordy, J., concurring).

25.   See Mosko, 416 Mass. at 401-402 (no special relationship between employer and general public); Commerce, 452 Mass. at 649 & n.11 (finding no need to apply "so-called special relationship test" but noting the Restatement "appears to leave the development of tort law in the area to decisions under settled common law principles"); Coombes v. Florio, 450 Mass. 182, 186-187 (2007) (finding special relationship theory inapplicable); Brody v. Wheaton College, 2009 Mass. App. Unpub. LEXIS 129, *5-6 (April 16, 2009) (no special relationship between guest and owner of building where party took place, or between college and non-student).

26.   Irwin v. Town of Ware, 392 Mass. at 759 & 762.

27.   Id. at 756.

28.   Id. at 184.

29.   Id. at 196.

30.   Id. at 200-201.

31.   Cimino, 385 Mass. at 330.

32.   Id. at 331.

33.   Ibid. (emphasis added).

The Author

Suleykan D. Walker is an associate with Meehan, Boyle, Black and Bogdanow, where she represents clients as a trial advocate and an appellate attorney in a variety of cases, including personal injury, product liability and consumer protection, and claims arising from civil rights violations. She is a member of the MBA's Litigation Council Steering Committee and the Amicus Committee. She also serves on the Massachusetts Law Review board of editors.

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