Employer Not Vicariously Liable for Intoxicated Driver / Appeals Court Affirms Summ Judg

Attorneys John Dealy and David Hassett successfully obtained summary judgment for a defendant construction company in a wrongful death action where its employee operated a motor vehicle involved in a fatal motor vehicle accident. The Massachusetts Appeals Court subsequently affirmed summary judgment for the defendant, and the Plaintiff’s Petition for Further Appellate Review by the Supreme Judicial Court was recently denied.

Four employees of the defendant construction company, including its foreman, were assigned to work at a construction project in Wayland, Massachusetts. Due to the distance between the jobsite and their respective homes, the defendant paid for the four workers to stay at a local motel. The foreman did not transport workers but did have some alcohol-related driving offenses that predated his employment with the defendant. As a “thank you” for working over the Labor Day Weekend, the defendant’s owner told the defendant’s foreman that he could buy the workers a “burger and a beer” on the company debit card. Attendance was optional and foreman understood that he could spend up to $50.00. Two workers declined the invitation but the foreman and the other worker drove the worker’s truck to a local pub. After consuming several alcoholic beverages and ordering a pizza, the foreman paid the bill using the company debit card. Upon leaving the pub, the worker decided that he was too intoxicated to drive and gave his keys to the foreman. While driving them back to the motel, the foreman drove the truck into a closed construction zone, striking and killing the plaintiff’s decedent – a MassHighway engineer working on a night paving crew.

Attorneys Dealy and Hassett moved for summary judgment on all counts of the plaintiff’s Complaint. They maintained that the defendant’s foreman was not within the scope of his employment at the time of the accident, such that the defendant was not vicariously liable for his conduct. The heart of the inquiry was whether the foreman was within the scope of his employment for the defendant when he was driving his co-worker’s truck back to the motel and collided with the plaintiff’s decedent. Attorneys Dealy and Hassett maintained that under the established case law, even if the foreman had been within the scope of his employment while hosting the “thank you” at the pub, he was no longer within that scope when he drove his co-worker’s truck while intoxicated on his way back to the hotel. They further maintained that the plaintiff would be unable to sustain its claims for conscious pain and suffering, and negligent hiring/retention/supervision/training. They maintained that the defendant’s foreman did not operate company vehicles, and had no duty to supervise the defendant’s employees during off hours or to monitor their alcohol consumption while away from the jobsite. They further argued that the plaintiff failed to identify or establish any specific training or supervision that should have been provided by the defendant, and failed to show how the alleged absence of training or supervision caused the accident.

Judge Robert Gordon of the Suffolk Superior Court granted the defendant’s Motion for Summary Judgment in its entirety. Plaintiff appealed and the Massachusetts Appeals Court affirmed the lower court’s decision. The plaintiff sought Further Appellate Review (FAR) from the Supreme Judicial Court (SJC), which was denied.