It has long been black-letter law that an employer may be held vicariously liable for torts committed by an employee acting within the scope of employment. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208.) But in the context of an employee consuming alcohol during an employer party, must the act of negligent driving occur while the employee is still within the scope of employment? Or is the fact that employee's consumption of alcohol occurred during an employment event sufficient to cause employer liability for employee's driving beyond the scope of employment while still under the influence of the alcohol earlier consumed? In Purton v. Marriott International, Inc. (filed 7/31/13) 2013 DJDAR 10154, the Court of Appeal, Fourth Appellate District, Division One, held that an employer may be found liable for its employee's torts as long as the proximate cause of the injury (in the court's view, alcohol consumption) occurred within the scope of employment.
In Purton, employee Landri, himself a Marriott bartender, consumed alcohol at an employer-hosted party and became intoxicated. Another employee drove him to the party and evidently drove him to his home afterwards along with yet another coworker. Without consuming any more alcohol, Landri then left his home to drive that coworker home. He struck another car, killing the driver. In the wrongful death action asserting vicarious liability against employer Marriott, the trial court granted summary judgment for Marriott on the ground the employer's potential liability under the doctrine of respondeat superior ended when the employee arrived home. The Court of Appeal reversed, holding as stated above.
The appellate court acknowledged that the plaintiff bears the burden of proving the employee's tortious act was committed within the scope of employment. But this form of liability is not dependent on any act of the employer for which it may be at fault. Rather, it is based on the tort being an outgrowth of the employee's employment. And while the employer is not normally responsible for the employee's "going and coming" from a workplace event, if the tortious act itself occurred at the workplace event, the employer is responsible for foreseeable events that occur thereafter. Foreseeability in the context of respondeat superior merely means the "employee's conduct is not so unusual that it would not be unfair to include the loss as among other costs of the employer's business." (Farmers Ins. Group v. County of Santa Clara (1995) 1 Cal.4th 992, 1004.)
On the question of whether the accident itself must occur within the scope of employment, the Court of Appeal looked to six other jurisdictions, finding those states equally divided on the question. It additionally explored analogous situations in California that found that driving from the event was essentially foreseeable, thus within the scope of employment where sufficient facts supported intoxication occurring during employer's business-related event. In particular, the court in Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792, 805, 806 found an employer liable for actions of off-duty employees, when the employer provided alcohol and permitted drinking at the workplace "even where the danger may manifest itself at times and locations remote from the ordinary workplace."
As the appellate court notes, its conclusion that the trial court erred in granting summary judgment does not impose liability on Marriott; rather the question needs to be resolved by the trier of fact. For example, while the court found Landri's act of driving from his home shortly after arriving safely home from the party may have been foreseeable, ultimately the trier of fact will need to determine from all of the evidence whether Landri's acts were "so unusual or startling as to render the car accident unforeseeable."
The Purton opinion presents excellent analyses in reaching its result in this case of first impression. I just wonder if the notion of what was the tortious act that proximately caused the unfortunate death should not be moored to the cases involving employees negligently driving directly from the employment locus, when the negligent driving is further attenuated in time and place from the employer event. This opinion assumes alcohol consumption is the tortious act proximately causing the accident, while it would appear that the tortious act proximately causing such an accident was driving under the influence of alcohol. When an employee engages in driving directly from an employer event while intoxicated, the employer arguably has directly facilitated his driving under the influence. That doesn't appear to be so when the employer may be relying on the fact the employee had a designated driver take him home, and he later decides to drive.
This opinion demonstrates that both proximate causation and foreseeability in the respondeat superior context are matters of public policy in determining who should pay for the costs derived from irresponsible behavior of an employee even when seemingly attenuated from the scope of employment. I can't quibble about the soundness of such a policy if it creates a greater responsibility on the part of more people to prevent even the potential of someone endangering the lives of others by driving while intoxicated. Companies and their lawyers and insurers need to be very aware of this broadening scope of liability when it comes to company parties.
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