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Tort/Negligence – Drunk Driver’s Employer – Voluntary Undertaking – No Duty to Third Parties

By: S.C. Lawyers Weekly staff//March 10, 2022

Tort/Negligence – Drunk Driver’s Employer – Voluntary Undertaking – No Duty to Third Parties

By: S.C. Lawyers Weekly staff//March 10, 2022

Even if (1) a drunk driver had consumed alcohol at work, (2) the defendant-employer knew she had done so, (3) the employer sent the intoxicated employee home, and (4) the employer refused a co-worker’s offer to drive the intoxicated employee home, there is no evidence that the employer otherwise “took control” by purporting to step in and assist the intoxicated employee itself. Nor is there evidence that the employer affirmatively contributed to its employee’s intoxicated state. The employer is not liable to those injured by its employee’s drunk driving.

The defendant-employer is entitled to summary judgment.

Voluntary Undertaking

According to plaintiffs, the employer “voluntarily acted by evaluating [its employee Laura] Gilbert, making her clock out, blocking a co-employee from getting [her] home safe, and sending her to drive home[,] all with the knowledge or actual notice that Ms. Gilbert was not in any condition to get behind the wheel.” For this argument to withstand summary judgment, the court would have to accept that Gilbert did, in fact, consume alcohol while at work. Gilbert testified, in no uncertain terms, that she did not begin consuming any alcohol until after she left the employer’s premises

Plaintiffs present evidence that no open containers were found in Gilbert’s vehicle, that Gilbert did not consume alcohol while driving home, and that Gilbert took work breaks outside the view of the cameras. As perhaps plaintiffs’ most persuasive evidence, they also provide testimony from co-worker Mackenzie Day that Gilbert returned from her breaks with a “strong pungent smell” and was “acting intoxicated.” The court presumes, for purposes of this motion for summary judgment, that Gilbert began drinking while she was still working.

Even if Gilbert consumed alcohol during her employment, plaintiffs would have to establish that a duty to third parties arose when the employer sent Gilbert home with the knowledge of that consumption. While Day testified that she offered to drive Gilbert home and was denied by supervisor Milinda Anderson, there is no evidence that that Anderson or the employer otherwise “took control” by purporting to step in and assist Gilbert themselves.

South Carolina cases that have examined similar arguments have rejected the notion that actors in the employer’s position voluntarily assume a duty. An intoxicated person is considered helpless, but in order to establish a defendant has “taken charge of” one who is helpless, a plaintiff must show the defendant did more than act, but through affirmative action assumed an obligation or intended to render services for the benefit of another.

Plaintiffs have presented no evidence that the employer affirmatively contributed to Gilbert’s intoxicated state, regardless of when that state occurred.

Other Issues

Where there is no evidence that Gilbert made a specific threat of harm directed at plaintiffs, the employer owed plaintiffs no duty of care under the “special relationship” test, regardless of its ability to monitor, supervise and control Gilbert’s conduct.

The employer’s compliance with its own corporate policies might go to the element of breach, but it has no bearing on whether the employer owed a duty. Even if the court were to consider the employer’s policies as potential evidence of a duty, they would at most speak to a duty owed to its employees, but not to third parties like plaintiffs. Courts applying South Carolina law have specified that a business’s failure to follow its own internal policies does not establish a legal duty to a third party, even if such policies could be relevant to the issue of failure to exercise due care.

Plaintiffs present no evidence that there is a corporate policy addressing third parties who might be affected by an employee’s intoxication. Plaintiffs have presented no germane argument indicating that the employer owed plaintiffs a duty based on its status as Gilbert’s employer.

Plaintiffs’ respondeat superior argument also fails. When Gilbert collided with plaintiffs’ golf cart, she was no longer carrying out the employer’s business.

Plaintiffs argue that Gilbert clocked out early “because that is what [the employer] told her to do,” and as such, “the reason Ms. Gilbert was on the road at the time and place of this collision is because [the employer] blocked Ms. Day’s efforts to take her home.” These arguments attempt to ascribe liability based on the employer’s actions, but they fail to speak to whether Gilbert was acting within the scope of her employment during the accident. To the extent that plaintiffs are claiming that Gilbert was acting within the scope of her employment because she was ordered to go home early, they present no legal support for that argument.

Moreover, to adopt plaintiffs’ interpretation of the law would risk blurring the line for when a principal retains the right to control the time, manner, and method of employment of the agent. Courts analyzing South Carolina law have consistently found that employees returning home are no longer working for their employers.

Likewise, plaintiffs have not shown that Gilbert consumed alcohol in the scope of her employment such that the employer should be liable as a matter of respondeat superior. Plaintiffs’ argument, that an employer owes a duty to third parties if the employee consumes alcohol on the employer’s premises, relies entirely on law from outside this jurisdiction.

Plaintiffs have not shown that Gilbert’s alcohol consumption occurred within the scope of her employment. Gilbert’s drinking on the job, if assumed to be true, in no way furthered the employer’s interests.

Gilbert’s supposed decision to drink at work could only have been personally motivated. Accordingly, the court finds that the employer did not owe plaintiffs a duty of care under respondeat superior because Gilbert was not acting within the scope of her employment at the time of the accident.

Plaintiffs have failed to allege a negligence action because there is no duty arising under any special relationship with Gilbert, under vicarious liability, or based on the employer’s affirmative acts.

Motion granted.

Scibek v. Gilbert (Lawyers Weekly No. 002-004-22, 18 pp.) (David Norton, J.) 2:20-cv-2638. Amanda Ruth Itterly and Kevin Smith for plaintiffs; Jeffrey Michael Crudup, Brett Harris Bayne, James Smith, Helen Faith Hiser and Matthew Neal Tyler for defendants. D.S.C.

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