The Gazette 1991

GAZETTE

i SEPTEMBER 1991

under the above provision, signi- ficant issues arise concerning Company X's possible civil liability for damages caused by employees who become intoxicated on its premises. Although Massachusetts has no so-called 'Dram Shop' statute, recent case law has suggested that a social host may be found to be liable under a theory of common law negligence for injuries to persons caused by guests who become intoxi- cated on the social hos t 's premises. In McGuiggan -v- New England Telephone and Telegraph Company, et at, 398 Mass. 152, 162 (1986), the Massachusetts Supreme Judicial Court stated as follows: "We would recognise a social host's liability to a person injured by an intoxicated guest's negli- gent operation of a motor vehicle where a social host who knew or should have known that his guest was drunk, nevertheless, gave him or permitted him to take an alcoholic drink and, thereafter, because of his in- toxication, the guest negligently operated a mo t or vehicle, causing the third person's injury. In deciding whether the social host exercised statutory pru- dence in such circumstances, a relevant consideration will be whether this social host knew or reasonably should have known that the intoxicated guest might presently operate a motor vehicle". Although the facts of that case exculpated the defendants under this standard, it is not difficult to see the potential risk Company X runs by having these weekly gatherings. Although Company X may argue that it is not a " h o s t " in the same manner as an individual who provides food and alcohol at a party at his personal residence, should an employee become intoxicated and then cause injury to a third person on his way home, Company X would likely be the target of the plaintiff both because of this newly articulated legal standard as well as its 'deep pocket' status. In this connection, it cannot be seriously disputed that Company X knows most of the participating "gues t s" will soon operate motor vehicles to return home.

This concern appears well grounded given the discussion in Langemann -v- Davis where the Court held the defendant to be not liable. In that case, the Court emphasised that the defendant was ". . . . recent case law has suggested that a social host may be found to be liable under. . . common law negligence for injuries to persons caused by guests who become intoxicated on .the social host's premises." not at home at the time of the party in question; had never kept alcoholic beverages; had left no alcoholic beverages in the home before leaving the party; and did not observe anyone consuming alcohol at the homa Contrasted with the situation presented hera Company X clearly has knowledge of and permits its employees to consume alcohol on its premises and corporately observes such con- sumption. Under the McGuiggan standard quoted above, the danger exists that Company X could, under certain circumstances, be character- ised as a "hos t" which "permitted" the consumption of additional alcohol by an already intoxicated employee who thereafter causes injury to a third person. Finally, this situation would be even further exacerbated should the employee in question be under the age of 21. In the Langemann case, the Court at least suggested that a more lenient standard of liability might be imposed upon a host who provides alcohol to a minor. In particular, the Court observed that other jurisdictions have considered unimportant the question of minors' intoxication at the time a social host provided an alcoholic beverage and pointed to cases wh i ch held t hat the furnishing of alcohol to a minor who later becomes intoxicated and drives negligently causing injury is sufficient to cause liability. In addition, should Company X be found to have delivered an alcoholic beverage to a minor in violation of the criminal law statutory pro- vision, this too could be considered evidence of its negligence. Although Company X could still argue that it did not actually furnish the alcohol and therefore should

not be held accountable, it remains unclear whether such a defence would prevail. In summary, serious issues are raised regarding this 'happy hour' practice. Certainly, its origin and continuation is founded on the no t i on t hat such gatherings promote a level of conviviality and goodwill among employees and provide an oppo r t un i ty for individuals at varying echelons within a company to intermingle socially. However, given the potential risks, it may well behove Company X to consider whether the presence of alcohol is a prerequisite for such social interaction. The outlined category of potential civil liability for a " h o s t " may soon be applied here by extension of our common law negligence principles, particularly as such ' a l coho l' centred entertainment is very much part of the Irish ethos. These legal developments in the US relating to the purchase or supply of alcohol have had quite an effect. Bar Staff are very conscious of the alcohol condition of patrons; your personal friend (i.e. the social host) who throws a party at his home is very conscious of your alcohol condition when you leave. Food (or drink) for thought!

Editor's Note: see Jordan House -v- Menow. •

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