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
A. Liability arising from defendant's control of
1. Commercial establishment: Injuries caused by intoxicated
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
2. Commercial establishment: Injuries caused by intoxicated
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
3. Social host: Injuries caused by intoxicated
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
5. Employer: Injuries caused by intoxicated
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
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
B. Liability arising from defendant's corporate or
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
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
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
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
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.
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
3. Coombes v. Florio, 450 Mass. 182 (2007)
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
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,
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
10. McGuiggan v. New England Telephone and
Telegraph Co., 398 Mass. 152, 162 (1986).
11. Ulwick v. DeChristopher, 411 Mass. 401,
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,
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,
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
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).
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.