SJC Says Boston Accident Victims can sue Livery Service for Permitting Intoxicated Customer to Operate Vehicle After an Evening of Partying


SJC-10149, November 26, 2008.

The Massachusetts Supreme Judicial Court has ruled that Boston Accident Victims of a two car collision could sue a livery service whose driver permitted an intoxicated customer to exit its van after a long night of partying and drinking, and to operate his vehicle to return home. He never made it, causing an accident with another vehicle, in which one occupant was killed and several seriously injured as the result of the crash.

The Court reversed a lower court dismissal of the action against the livery service, and also reversed a declaratory judgment, which had entered, permitting the insurer, Commerce Insurance Company to avoid coverage and its obligation to defend the action.

In August, 2001, a group of men had hired the services of Ultimate Livery Service, Inc. to attend a bachelor’s party. The group planned to consume alcohol and wanted someone else to drive, so they wouldn’t have to worry about getting home. It was arranged that the group would be picked up and dropped off at a bar in South Boston.

Thumbnail image for stretch limo.jpgA member of the group, William Powers, drove his girl friend’s vehicle to the bar on the evening of the party. He drank at the bar until Ultimate’s driver and van arrived around 8 P.M. They left the bar, went to a liquor store to buy beer and then proceeded to a strip club in Rhode Island, where they continued drinking until closing around 1 A.M. They then returned to the Boston bar, continuing to drink beer in the van on the ride back.

The group arrived at the bar at about 2:00 A.M. It was closed, as was a nearby subway station. About ten minutes later, the driver departed with two member of the group, who intended to go to another party. The other passengers had left the van. The Ultimate driver did nothing to determine whether the passengers were capable of getting home on their own.

Powers, along with two others, drove off in his vehicle, and shortly thereafter, collided with another car, killing one passenger and seriously injuring most of the other occupants of both cars. Powers was transported to a nearby hospital, where a toxicology screen showed his blood alcohol level to be three times the legal limit.

Ultimate’s owner had admitted that the company permitted its passengers to consume alcohol in its vehicle and had no restrictions on the amount, or type, of alcohol its passengers could consume. It did not have any policies, guidelines, or training for its drivers to make them aware of the extent of passenger alcohol consumption. He also admitted that he expected customers to drink in his vehicles, and that if his driver thought a passenger was intoxicated, he would expect him to drive the individual home.

The SJC concluded that, in the circumstances of this case, the tort defendants owed a duty of reasonable care to avoid discharging a passenger, who they knew, or should have known, was intoxicated and likely to drive an automobile. A private carrier, which transports intoxicated persons could reasonably foresee that passengers would not be fully capable of making rational decisions about their ability to drive.

The Court recognized that its decisions had primarily dealt with the liability of commercial suppliers and social hosts for injuries to third parties caused by drunk drivers, but stated that this was not a limitation. “Where the general nature of the harm that occurred is foreseeable, it is not of consequence that the identity of an injured plaintiff is not specifically known to the defendant”. Ultimate was a commercial enterprise profiting from its business and was in the best position to put safeguards in place, which would keep intoxicated drivers off the roads.

The Court also ruled that there was coverage under Commerce’s general liability policy.
The determinative issue was whether the plaintiffs’ injuries arose out of the use of Ultimate’s van. It found that there was no specific line to test when an injury could be said to arise out of the use of an automobile, but had to be decided on a case-by-case according to the facts of each case.

The Court found that there must be a causal connection between a motor vehicle’s use and an injury for the injury to be deemed to have arisen out of the ownership, maintenance, or use of the motor vehicle. It determined that an injury arose out of the use of a vehicle within the provisions of an automobile insurance policy when a causal connection was reasonably apparent between the use to which the vehicle was being put and the resulting injury.

The Court rejected Commerce’s arguments that the plaintiffs’ injuries did not arise out of the use of Ultimate’s van because no alcohol was supplied by Ultimate and because Ultimate’s van was not involved in the collision. Here, the van was used consistently with Ultimate’s business objectives, namely, to permit passengers to get intoxicated while Ultimate’s employee took care of the driving.

The Court found that the risk of harm was not too far removed to lack the required nexus under the broad causation standard, which applied, and was contemplated when the parties originally entered a contract for the transportation service. Therefore, the Court concluded, as to the claims of social host liability and negligence, the commercial automobile policy provided coverage and imposed a duty to indemnify on Commerce.


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