S.D. Employer Liable for Accident Caused by Drunk Underage Worker

June 30, 2009

The South Dakota Supreme Court has ruled that if an employer provides an underage employee with unfettered, unsupervised access to alcoholic beverages, that employer is liable for any off-site damage that occurs as a result.

The Court made that ruling in Catherine Rose McGuire v. Dean J. Curry and Park Jefferson Speedway Inc. v. Christopher Eric Mollet, a case that involved an underage employee who got drunk at work and later caused a vehicular accident.

In the Supreme Court’s written opinion, Justice Konenkamp described the case: “An underage employee, who had unlimited access to his employer’s alcoholic beverages, drank to intoxication while at work. After his shift ended, the employee drove his vehicle off the premises and struck the plaintiff, who was a passenger on a motorcycle. She brought suit against the employee and the employer.

“As to the employer, the plaintiff alleged negligence per se, based on a violation of SDCL 35-4-79, and common law negligence for failure to exercise ordinary care in the hiring and supervision of the employee. The employer moved for summary judgment, asserting that it owed no duty to the plaintiff. The circuit court agreed, and plaintiff appeals.”

The Supreme Court disagreed with the circuit court, however. It held that it is not unreasonable to assume that “a member of the general public could be injured when the employer provided an employee, who was below the drinking age, unsupervised and unrestricted access to alcoholic beverages.”

Therefore, the Court ruled, the employer should be held liable for the employee’s actions.

Specifically in this case, Curry, who was 20 years old at the time of the accident in August 2003 and an employee of Park Jefferson Speedway, left work, drunk, after his shift ended.

“It was 12:45 a.m. Curry drove around the Speedway racetrack a couple times in his pickup, cut through a ditch, and entered a road bordering the Speedway’s property,” Konenkamp wrote. “He was drunk, speeding, and driving on the wrong side of the road. Not seeing a northbound motorcycle driven by Chris Mollet, on which Catherine McGuire was a passenger, Curry collided with the motorcycle.”

McGuire, who was seriously injured, sued the Speedway and Curry.

Curry had worked for Speedway as a “runner,” delivering alcohol and other supplies to its concession stands and bars, according to court documents. He had a key to Speedway’s alcohol storage facility, the Court said, and “Speedway did nothing to monitor Curry’s access to, and possible pilfering and consumption of, the company’s alcohol.”

Curry admitted “that he drank every night from the beginning of his shift until the end,” Konenkamp wrote. “On the evening of the accident, Curry had two beers, four vodka drinks, two whiskey and cokes, and a rum drink. After his shift, while still in the Speedway’s parking lot, Curry drank a 32-ounce beer.”

Despite the fact that Speedway had allowed an underage employee with unlimited and unsupervised access to alcohol while at work, the circuit court concluded that “Speedway owed no duty to McGuire under theories of negligent hiring, retention, and supervision. The court based its conclusion on the fact that the accident happened off the Speedway’s property and not with any Speedway equipment.”

Although Speedway had adopted a no drinking policy for underage employees, it did not routinely provide supervision to prevent consumption of alcohol by underage employees, the Court said.

“Mere adoption of a no-drinking policy for underage employees while the employees are on the clock is not sufficient action on the part of the Speedway to constitute an acceptance of an affirmative duty. … We decline to hold that an employer affirmatively undertakes a general duty to the public based on the sole fact that the employer adopted a no-drinking policy,” Konenkamp wrote.

Therefore, the Court said, “Speedway had a duty to supervise Curry – a duty to be aware of any problems with Curry’s free access to the company’s alcoholic beverages. It was foreseeable to an ordinary reasonable person that by not supervising an underage employee afforded free reign to consume alcohol while at work, that the employee could abuse the alcohol, leave the premises after work unfit to drive, and injure a member of the general public.”

The circuit court was wrong in not holding that Speedway owed a duty to McGuire in this case, the Supreme Court concluded.

Source: South Dakota Supreme Court

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