The plaintiff, Charles Lev, commenced this action against, among others, Beverly Enterprises-Massachusetts, Inc. (Beverly), seeking damages for injuries he sustained as a result of being struck by a motor vehicle driven by John Ahern, an employee of Beverly, who was intoxicated at the time of the accident. Beverly filed a motion for summary judgment pursuant to Mass. R. Civ. P. 56, as amended, 436 Mass. 1404 (2002), with respect to counts II and III of the amended complaint. Count II alleged that Beverly was vicariously liable for Ahern's negligence based on their employment relationship, and count III alleged traditional negligence on the part of Beverly. A judge in the Superior Court allowed the summary judgment motion, and a divided panel of the Appeals Court affirmed. See Lev v. Beverly Enters.-Mass., Inc., 74 Mass.App.Ct. 413 (2009). We granted the plaintiff's application for further appellate review, and now affirm.
1. Background. We summarize the material facts in the light most favorable to the plaintiff, the nonmoving party. See Foster v. Group Health Inc., 444 Mass. 668, 672 (2005). Ahern was employed as a chef at the Heathwood Nursing and Rehabilitation Center (Heathwood) in Chestnut Hill, a facility owned and operated by Beverly. On March 11, 2004, the date of the accident, Ahern began his shift at Heathwood around 7 A.M. At approximately 5:30 P.M., Ahern left Heathwood
At approximately 7 P.M., Ahern left South Pacific in his personal vehicle to go home. While driving through the intersection of Washington Street and the on-ramp to Route 128 north in Newton, Ahern's vehicle struck the plaintiff as he was crossing the street. The plaintiff suffered severe and debilitating injuries. Ahern was arrested and eventually convicted of operating a motor vehicle while under the influence of intoxicating liquor, in violation of G. L. c. 90, § 24 (1) (a) (1).
In count II of his amended complaint, the plaintiff alleged that Ahern was acting within the scope of his employment when he became intoxicated at South Pacific and then negligently operated his motor vehicle, causing it to strike and injure the plaintiff. The plaintiff further alleged, in count III of his complaint, that Beverly, through its employees (i.e., Pacitti), controlled and monitored Ahern's consumption of alcohol; knew or should have known that he was intoxicated; and permitted him to operate his motor vehicle while in that condition, resulting in the plaintiff's severe injuries.
In her memorandum of decision and order, dated June 27, 2007, allowing Beverly's motion for summary judgment, the judge concluded that, with respect to count II, Ahern's actions were not within the scope of his employment, and that, even if his meeting with Pacitti at South Pacific could be considered work related, the liability of an employer does not extend to acts committed by employees when traveling to and from work. As such, the judge continued, Ahern was no longer acting within
The Appeals Court affirmed, concluding that Beverly was not liable to the plaintiff either under a theory of respondeat superior or under principles of employer-host liability. See Lev v. Beverly Enters.-Mass., Inc., supra at 414-422.
2. Standard of review. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Cargill, Inc. v. Beaver Coal & Oil Co., 424 Mass. 356, 358 (1997). See Mass. R. Civ. P. 56 (c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue. See Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). Any doubts as to the existence of a genuine issue of material fact are to be resolved against the party moving for summary judgment. See Attorney Gen. v. Bailey, 386 Mass. 367, 371, cert. denied, 459 U.S. 970 (1982).
3. Liability based on respondeat superior. The plaintiff first contends that Ahern was acting within the scope of his employment when he became intoxicated at South Pacific, and that Ahern was still acting within the scope of his employment when he operated his motor vehicle in such a manner as to cause the plaintiff's accident and injuries. Thus, in the plaintiff's
Under the doctrine of respondeat superior, "an employer, or master, should be held vicariously liable for the torts of its employee, or servant, committed within the scope of employment." Dias v. Brigham Med. Assocs., Inc., 438 Mass. 317, 319-320 (2002). We have stated that "[t]he `conduct of an agent is within the scope of employment if it is of the kind he is employed to perform, ... if it occurs substantially within the authorized time and space limits, ... and if it is motivated, at least in part, by a purpose to serve the employer'" (citations omitted). Mosko v. Raytheon Co., 416 Mass. 395, 399 (1993) (Mosko), quoting Wang Lab., Inc. v. Business Incentives, Inc., 398 Mass. 854, 859 (1986). See Restatement (Second) of Agency § 228 (1958). Generally speaking, travel to and from home to a place of employment is not considered to be within the scope of employment (colloquially referred to as the "going and coming" rule). See Mosko, supra. See also Restatement (Second) of Agency, supra at § 233 comment a, at 516 (time of service "begins only when the master has a right to direct the method by which the servant is to perform the work, and terminates when the master has no longer a right to control it"). Cf. Wormstead v. Town Manager of Saugus, 366 Mass. 659, 666-667 (1975) (police officer injured during lunch break, a time when officers continue to perform police functions in community, included in class of "traveling workers" not barred from receiving compensation under G. L. c. 41, § 111F, by "going and coming" rule).
Here, assuming for purposes of Beverly's summary judgment
4. Employer-host liability and traditional negligence. To
In McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152,
Here, Pacitti did not provide or serve Ahern with the alcoholic beverages that he consumed. The alcoholic beverages consumed by Ahern were ordered by Ahern, including at least one drink that he ordered before Pacitti arrived at South Pacific, were served by a bartender, and were paid for by Ahern. In accordance with the principles articulated in Kelly v. Avon Tape, Inc., 417 Mass. 587,
We turn now to consideration whether Beverly owed a duty of care to the plaintiff under traditional theories of negligence. The plaintiff contends that an employer's "special relationship" with its employees, and the concomitant ability to control their actions, warranted imposition of a duty on Beverly to take reasonable steps to prevent Ahern from consuming alcoholic beverages while at South Pacific and from driving home while intoxicated, even where Beverly neither furnished nor controlled the alcohol. We disagree.
As a general principle of tort law, "[t]here is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another...." Restatement (Second) of Torts § 315 (1965). See Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 40-41 (2009). However, we have recognized such a duty, albeit in narrowly prescribed circumstances, where a special relationship exists between the person posing the risk and the one who can prevent the harm. See Restatement (Second) of Torts, supra at § 315 (a); W.L. Prosser & W.P. Keeton, Torts
Neither the plaintiff's reliance on the Restatement (Second) of Torts, nor his reliance on the Restatement (Third) of Torts, persuades us otherwise. The Restatement (Second) of Torts §§ 316-320 (1965) enumerates several categories of special relationships — parent and dependent children, master and servant, possessor of land or chattels and licensee, one in charge of a person with dangerous propensities, and one having custody over another — none of which is applicable here.
Finally, we consider the effect of Beverly's substance, drug, and alcohol abuse policy, which prohibits, among other things, the consumption of alcoholic beverages by its "associates," on the plaintiff's negligence claim. At issue is whether the policy imposed a duty of care on Pacitti, for the benefit of the plaintiff, to prohibit Ahern from consuming any alcoholic beverages while they were at South Pacific, and whether her failure to enforce the policy constituted negligence on the part of Beverly. We conclude that there was no such duty of care and, therefore, no actionable negligence.
Beverly's substance, drug, and alcohol abuse policy, set forth in its Human Resources Management Policy and Procedures Manual (effective date May 1, 1998), provides, in relevant part, as follows:
An associate is subject to discipline, up to and including discharge, for any violation of the substance, drug, and alcohol abuse policy.
In Massachusetts, "[a]n employee's violation of his employer's rules, intended to protect the safety of third persons, is evidence of the employee's negligence, for which the employer may be held liable." Commonwealth v. Angelo Todesca Corp., 446 Mass. 128, 138 (2006). See Stevens v. Boston Elevated Ry., 184 Mass. 476, 479-480 (1904) (employer's rules or policies are evidence of what employer thinks is necessary to protect safety of others). However, such a violation "does not create a duty in a plaintiff where one does not exist independently." Goulart v. Canton Hous. Auth., 57 Mass.App.Ct. 440, 444 (2003) (violation of written snow removal policy does not provide independent basis for liability). See Field v. Gowdy, 199 Mass. 568, 573 (1908) (existence of nuisance cannot be predicated solely on violation of municipal ordinance where no duty exists apart from ordinance). Cf. Ulwick v. DeChristopher, 411 Mass. 401, 408 (1991) (violation of statute with criminal penalties does not provide independent ground for civil liability). It is only where a duty of care exists that the violation of a statute, ordinance, regulation, or policy is relevant because it constitutes some evidence of a defendant's negligence. See Bennett v. Eagle Brook Country Store, Inc., 408 Mass. 355, 358-359 (1990). The violation does not constitute negligence per se. See Ulwick v. DeChristopher, supra.
As we have stated, the general rule under our common law is
In addition, no evidence has been presented in the summary judgment materials to suggest that Beverly's substance, drug, and alcohol abuse policy was intended to protect a person in the plaintiff's position (a member of the general public wholly unconnected with Beverly). Rather, the policy is intended to foster a "safe environment that promotes the welfare of [Beverly's] residents, associates and visitors" and to preserve "the quality of patient care." It is designed for the protection of Beverly's residents, associates and visitors, whether on company premises or, in the case of associates, while conducting company business off premises. Associates attending to company business off premises are unable to address the needs and promote the welfare of either Beverly or its residents when intoxicated. The substance, drug, and alcohol abuse policy simply is not designed for the protection of the public at large. Accordingly, Beverly's policy may not serve as the basis for the plaintiff's negligence claim. See, e.g., Cimino v. Milford Keg, Inc., 385 Mass. 323, 327-328 (1982) (statute prohibiting sale of liquor to intoxicated persons intended to protect accident victims); LaClair v. Silberline Mfg. Co., 379 Mass. 21, 26-27, 29 (1979) (workers' compensation statute intended to protect employees); Perry v. Medeiros, 369 Mass. 836, 840-841 & n.4 (1976) (building code intended to protect tenants in common areas). Imposing a potentially onerous burden on employers to monitor the off-premises conduct of all of their employees to ensure that no