David E. Frank
Lawyers on both sides of the bar say a recent Supreme Judicial Court decision points to the increased willingness of the state's appellate courts to recognize new theories of civil liability in drunk-driving cases.
The issue most recently arose in Commerce Insurance Company v. Ultimate Livery Service, Inc., et al. (Lawyers Weekly No.10-204-08), in which the SJC held that a private livery service could be found liable in a fatal car accident caused by a customer who was three times over the legal limit when the limousine dropped him off for the evening.
"The SJC created a duty where one really didn't exist because, under the caselaw prior to this decision, any duty which may have existed ended when a carrier dropped off a passenger," said Kenneth F. Rosenberg of Worcester, who represented the defendant livery service. "But the trend with the SJC and Appeals Court lately has been to create duties more expansive than it has in the past. This is an example of that happening."
The SJC's ruling came less than two months after the Appeals Court's landmark decision in Zinck, et al. v. Gateway Country Store, Inc., et al., which expanded the duty of care store owners owe the public when they are found to have sold alcohol to minors.
Annette Gonthier Kiely of Salem, who successfully argued the issue of first impression in Zinck, said instances where limos are used to allow drinking without driving is a common fact pattern.
"Like [Zinck], there is no question that the [Ultimate Livery] decision is one that will be regularly relied upon by lawyers in liquor liability cases," she said. "It provides real guidance for when the court will find there is a duty and shows what kind of facts and policy considerations have to be in place to support such a conclusion."
In Ultimate Livery, Rosenberg, a lawyer at Fuller, Rosenberg, Palmer & Beliveau, unsuccessfully argued that where the drunk driver had been safely dropped off before the fatal collision, any duty a common carrier owes to its passengers had terminated.
But the SJC disagreed, reversing Superior Court Judge Patrick F. Brady's summary judgment ruling.
"Until now, there really hadn't been a high-level appellate decision anywhere in the country arising out of an evening of drinking in a limousine or other private transportation service in which alcohol was permitted," said Michael B. Bogdanow, who represented one of the plaintiffs. "This is a decision that says the public is entitled to more from these companies than to simply drop off drunk drivers at their cars."
Sending a message
Bogdanow, who practices at Meehan, Boyle, Black & Bogdanow in Boston, said the SJC ruling makes it clear that lower court judges generally should leave factual inquiries in the hands of jurors.
"The limousine service had a duty of care, according to the [SJC], to take reasonable steps to get this person to a place of safety," he said. "[Brady] felt that simply dropping him off where he was picked up was enough."
While the decision seems to be another case in which that duty is expanded, Bogdanow said it is more an indication of the court's willingness to allow questions of liability to go before a jury.
"There can be extremes where the limousine service takes reasonable steps to make sure a person was being dropped off in a safe place where they wouldn't be driving, and despite exercising reasonable care, one of its passengers went off and drove," he said. "The court did not say the limousine service would be liable in that situation. This isn't strict liability."
But in the case before the SJC, Bogdanow said, when the livery service dropped off its passengers in Boston at 2 a.m., the surrounding bars were closed and the MBTA was not running. It should have been apparent to the chauffeur, he said, that the customer was going to get behind the wheel and drive.
"The [SJC] believed that there is no simplistic formula for determining whether a duty of care arises," he said. "When you look at this case and several recent others, you can see a pattern emerging in which the court is going to look at all of the surrounding circumstances and ask: 'What did the defendant know? What was the likelihood that serious harm could arise from the defendant's actions or failures to act? How severe was the likely harm? What was the relationship between the plaintiff and the defendant?'"
Unjust caretaking
Rosenberg countered that the court's ruling unfairly requires livery services to act as caretakers.
"To have to ensure that someone is not going to drive is really an impractical thing for [limousine] drivers to do because it means they have to follow these people until they sober up, which becomes really burdensome," he said.
He added that one of the real problems with the decision is the uncertainty surrounding how to determine when a duty begins and ends.
"The driver can't prevent a passenger from going wherever he or she wants to go, and they can't falsely imprison somebody," said Rosenberg. "If someone doesn't want to go home, what is the driver supposed to do at that point?"
Darin L. Wessell, who submitted an amicus brief on behalf of the Taxicab, Limousine & Paratransit Association, said the increased potential of liability will, at a minimum, decrease the availability and increase the price of designated driving services.
"Imposition of a duty of care would place private and common carriers in a Hobson's choice: they discharge the intoxicated passenger and face liability if the discharged passenger injures himself, herself, or others; or they refuse to discharge the intoxicated passenger and face liability to the intoxicated passenger for, e.g., false imprisonment," he wrote in his brief.
Wessell also cautioned that reversing Brady's decision would discourage responsible drinking by cutting down on the use of designated drivers, taxis and livery services.
Tragic drop-off
In August 2001, several individuals were seriously injured, and one man killed, in a car accident caused by intoxicated driver William Powers.
The driver, along with five other men, had attended a bachelor party prior to the accident. The group had hired defendant Ultimate Livery Service to take them from a bar in Boston to a bachelor party at a Rhode Island strip club and then back to the sports bar.
Once inside the car, the men allegedly drank liquor that they had obtained before entering the limo. When the group was returned to the sports bar by Ultimate's driver, Richard Broderick, Powers got into a car and drove away.
A short time later, Powers' car was involved in a collision that killed off-duty Boston police officer Sean Waters and injured two others.
The injured victims and Waters' estate sued the livery service and Broderick, alleging they negligently allowed Powers to leave the limo when they knew, or should have known, he was likely to drive.
Brady granted summary judgment in favor of the defendants, finding they owed no duty to protect the plaintiffs from the conduct of an intoxicated passenger once he was returned to the drop-off point.
Up to the jury
In vacating Brady's ruling, Justice John M. Greaney, writing on behalf of the SJC, said he found as a matter of law that the defendants owed a duty of reasonable care to avoid discharging an intoxicated passenger who they should have known was likely to get behind the wheel.
"A private carrier, like Ultimate, which transports intoxicated persons can reasonably foresee that passengers such as Powers may not be fully capable of making rational decisions about their ability to drive," he said.
In support of that conclusion, Greaney cited the SJC's 2006 Jupin v. Kask decision in which the court held that a tort defendant owed a duty of care to a plaintiff to secure a handgun used by a third party to shoot and kill the plaintiff's son.
"Like this case, the duty imposed on the defendants concerned precautions that should have been taken by them to prevent the harm that was inflicted by a third party," he said.
Greaney wrote that the limousine driver allowed the group to drink in the car, observed them consuming alcohol in a bar and took them to a liquor store.
"[The driver] knew, or should have known, that Powers was intoxicated, yet he allowed Powers to make his own judgment about driving, failing to take any reasonable precautions to prevent him from doing so," he said. "A jury could conclude that Ultimate and Broderick were negligent when they left Powers at a location where he would likely drive and pose an extreme danger to the public."
In response to concerns that the ruling would have widespread impact, Greaney noted that it was confined to a specific set of facts.
"Our finding of possible liability in this case is limited to the facts described above and our holding that a duty exists on these facts does not signal that liability may be found in cases involving other private carriers for hire with dissimilar facts," he said.
December 8, 2008
