In Lev v. Beverly Enterprises-Massachusetts, Inc., the SJC held that an employer was not liable to a pedestrian who was struck by a vehicle driven by an intoxicated employee who was driving home from an off-site meeting.

John Ahern, an employee of a rehabilitation center owned by Beverly Enterprises-Massachusetts, met his supervisor at a restaurant after working from 7:00 a.m. to 5:30 p.m. While at the restaurant, the two discussed work-related issues, and Ahern purchased and consumed two alcoholic beverages. While driving home from the restaurant, Ahern struck and severely injured pedestrian Charles Lev.

Following Ahern’s conviction for driving under the influence, Lev sued Beverly Enterprises, alleging that Ahern was acting within the scope of his employment when he was driving home and that Ahern’s supervisor was responsible to prevent Ahern from driving while intoxicated. The Massachusetts Superior Court granted summary judgment in favor of Beverly, and the Massachusetts Appeals Court affirmed before the case came before the SJC.

In affirming both lower courts’ findings, the SJC first examined Lev’s argument that Beverly should be liable for Ahern’s negligence because he was acting within the scope of his employment. The SJC determined that Ahern was not because once he began his commute home, he was no longer under Beverly’s direction or control. Accordingly, Beverly could not be liable for Ahern’s actions while driving home.

The SJC then found that Beverly could not be liable as a social host because Beverly did not control or furnish the alcohol that Ahern consumed. The SJC noted that the restaurant served the alcohol and that Ahern ordered and paid for his drinks. The SJC also ruled that Beverly did not owe Lev a duty of care, and therefore was not liable, since it could not have reasonably foreseen a need to take affirmative action to protect Lev, nor could it have anticipated the harm to Lev for its failure to act.

Finally, the SJC rejected Lev’s argument that Beverly was liable by virtue of its failure to enforce its policy prohibiting alcohol consumption while conducting company business. The Court held that such policies do not create liability to third parties where no duty to third parties otherwise exists, as was the case here. The Court also found significant that the policy explicitly stated it was intended to protect residents, associates, and visitors to its facilities without mentioning the general public.

While the case demonstrates that employers may not be liable for alcohol-related injuries to third parties caused by their employees, employers should be aware that they could face liability under different circumstances. For example, the outcome in Lev might have been different if Ahern was returning to work from a meeting, if Beverly controlled or furnished the alcohol, or if its policy had been worded differently.