Everyone was having such a good time, too . . .
The company was hosting its annual holiday party. The company had arranged to hold the event that Saturday night in a hotel ballroom. Moods were festive, especially because the company's profits were up about 10%. Because he enjoyed doing it and served as a freelance bartender in his spare time, one of the company's new sales employees, Tom Collins, was helping to tend bar.
Much of the company's success that year was attributable to the efforts of Johnny Walker, V.P. of Sales, who, for understandable reasons, was in a celebratory mood. When he, at about 11 p.m., bellied up to the bar for a fourth round, Tom couldn’t help but notice that Johnny, normally the epitome of self-control, seemed more than a little impaired. Tom said to Johnny, "Mr. Walker, with all due respect, don't you think that it may be time to slow down? In fact, given the hour, I'll be happy to arrange a ride to take you home." Johnny, now irritated, replied "Tom, you make an excellent highball, but I'd be grateful if you'd mind your own business, OK?" Tom did as he was asked and poured Walker another drink. With that, Johnny, armed with another scotch and soda, disappeared into the crowd.
The next morning, Tom, to his shock, learned that Johnny had gotten into his Volvo to drive home and promptly collided with another driver. The other driver, as a result, was seriously injured and remained hospitalized in a coma for about nine months. He then died.
Candy is dandy, but liquor is quicker, so be careful out there . . .
May an employer with employees in North Carolina, in appropriate circumstances, be held liable for the malfeasance of its employees and, specifically, be held liable as a "social host" because one of its employees served alcohol to a person when the employee knew or should have known that the person was drunk and would soon be driving on public roads and might hurt or kill someone?
Absolutely. The doctrine of "social host liability" was first declared in North Carolina about 25 years ago. The North Carolina Supreme Court, in the 1992 case of Hart v. Ivey, ruled that the plaintiffs had stated a valid claim when they alleged that various defendants had been negligent in throwing a party at which beer was served to an 18-year-old, under circumstances in which the defendants knew or should have known that the young man was intoxicated at the time he was served, that he would drive a motor vehicle from the party, and that he was likely to injure someone.
The court wrote that it had not been able to find a North Carolina case dealing with similar facts, but concluded "that the principles of negligence established by our decisions require that we hold that the plaintiffs . . . have stated a claim." The court emphasized that it was not recognizing a new claim, but was merely applying the established elements of negligence to find that the plaintiffs stated claims recognized by law.
What had the plaintiffs claimed? Only:
- That "the defendants served an alcoholic beverage";
- To a person they knew or should have known was under the influence of alcohol; and,
- That the defendants knew that person would shortly thereafter drive an automobile.
The court's conclusions in Hart, if you think about them, aren’t surprising:
If proof of these allegations were offered into evidence, [then] the jury could find from such evidence that the defendants had done something a reasonable man would not do and were negligent. The jury could also find that a man of ordinary prudence would have known that such or some similar injurious result was reasonably foreseeable from this negligent conduct. The jury could find from this that the negligent conduct was the proximate cause of the injury to plaintiffs.
Sadly, the court later had occasion to encounter just such a claim brought by the estate of a man killed by an employee who had attended a party for a retiring supervisor at the home of an officer of the employer. In the 1995 case of Camalier v. Jeffries, the employer sponsored the party and hired a catering company to help with food and drink service and another company to handle parking arrangements. The catering company and a company that it hired supplied all of the bartenders at the party.
The employee downed three or four gin and tonics and then decided to leave, and was taken by van to his car. He then drove his car into an automobile whose driver suffered serious injuries and then died of the injuries about nine months later. Within two hours after the time of the accident, a blood sample was drawn from the employee showing that his blood-alcohol concentration was well over the legal limit.
In ruling on the case, the North Carolina Supreme Court reiterated the elements of "social-host liability" that it had declared in Hart. In Camalier, the defendant company and one of its officers dodged liability, but only because the evidence was insufficient to show that they knew or should have known that the employee was hammered when he was served alcohol at the officer's home.
The court observed that there was no question that the defendant employer and its officer caused alcohol to be served to the employee and knew or should have known that the employee would be driving an automobile after the party. Thus, the first and third factors set forth in Hart were not in dispute. But the court also found that the predicted evidence didn’t show that either the employer or the officer knew or should have known that the employee was drunk when he was being served.
The impaired employee who caused injury in Camalier had been served by a vendor hired by the employer rather than by an employee of the defendant employer. It appears that North Carolina's appellate courts have not yet held an employer liable as a "social host" based on the actions of an employee, but the circumstances in which a court may do so are not difficult to imagine. Such liability can arise from an employer-hosted event at a restaurant, country club, pub, or similar establishment. The location will not matter and a court is likely to find employer liability if there is proof that an employee, under circumstances intended to promote the interests of the employer, served alcohol to a person when the employee, or its representative, knew or should have known that the person was intoxicated and would soon be driving and that a third-party was injured as a result.
The Supreme Court of New Mexico, addressing such an issue, highlighted the principles of employers' and employees' liability as "social hosts" where the host purchases liquor and causes it to be served to a guest and, as a result, a third person is injured. In the 2011 case of Delfino vs. Griffo, employees of a pharmaceutical company, in the course of their employment, entertained a physician's employee in several restaurants. The guest consumed considerable alcohol, became very intoxicated, departed in her car, and shortly thereafter caused a fatal accident.
The New Mexico court, discussing liability as a "social host," observed:
Social hosting need not occur in a home; one may host in a bar or restaurant where the actual delivery of alcoholic beverages to the guests is performed by a licensed server. Factors that are key to determining whether one is a social host in a public establishment are whether the alleged social host exercised control over the alcohol consumed by the guests; whether the alleged social host convened the gathering for a specific purpose or benefit to the alleged social host, such as promoting business good will; and whether the alleged host intended to act as 'host' of the event, meaning arrange for the service of and full payment for all food and beverages served to the guests.
The New Mexico court found, based on the facts of the Delfino case, that the employer was a "social host" for the drunk driver and, in such capacity, the employer could be sued and held liable.
Bring your carrier along for the ride . . .
Employers may consider purchasing general liability insurance to insure them against losses arising from the provision of alcohol by their employees to an intoxicated driver who then causes injury or death. A typical general liability insurance policy includes a business liability provision that will pay for damages arising from causing or contributing to the intoxication of a third party, so long as the insured entity is not in the business of manufacturing, distributing, selling, or furnishing alcoholic beverages. Employers can also buy a one-time special event policy if their current insurance doesn’t provide that kind of coverage.
Employers may also try to insulate themselves from "social host" liability by hiring professional caterers or bartenders who maintain such general liability insurance coverage, so that the employer, if it encounters a "social host" liability claim, may at least try to pass the liability to the caterer's or bartender's insurance carrier.
Employers should bear in mind, however, if tragedy occurs and litigation ensues, that it is the employer—not the insurance company—that will be sued, and that having insurance does not mean that the employer is immunized from liability. It means only that the insurance carrier may have to pay if the employer is found liable (or, more likely, if the employer convinces the carrier to pay a pre-trial settlement to enable the employer to avoid an embarrassing lawsuit). Moreover, a policy's limits of liability are not always high enough to cover all claims. The amount of liability can exceed the limits, in which case the employer, if held liable as a "social host," can, to one degree or another, be on its own to pay a settlement or judgment.
One useful tip for employers who want to celebrate with their employees and host social events at which alcohol is served is to limit the access to alcohol, such as by setting limits on how much or how long alcohol is served at the event. You can't mandate good judgment, but you can decide how much temptation you're willing to pour.
The author would like to thank Tige Hopper, with AssuredPartners, in Asheville, North Carolina, for information pertaining to insurance coverage pertaining to "social hosts" liability and related exclusions.
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This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.
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