The Long Arm of Liability

Radley Balko | December 2, 2008

Massachusetts' highest court has ruled that a livery service is liable for a drunk driving fatality caused by one of its customers—after he had been dropped off. Seems like a helluva' stretch to get to negligence, here.

The Supreme Judicial Court found that Ultimate Livery Service Inc. of Boston and its driver, Richard Broderick, were negligent in a 2001 accident that killed an off-duty Boston police officer and left several other people with serious injuries.

The court said Broderick should not have dropped off a drunk passenger at a location where he would probably get into a car and drive.

Even here, I'd have a problem with the ruling. But it's actually worse. The service didn't drop the passenger off at a parking lot, or at his car. It dropped him off at another bar.

William Powers, along with five other men, had hired Ultimate to take them to a bachelor party on the night of Aug. 11, 2001. The driver picked them up in a 15-passenger van at a South Boston sports bar, took them to a strip club in Rhode Island, then drove them back to the sports bar. The men drank in both bars and during the ride to and from Rhode Island.

Powers, joined by two of the men, drove away after being dropped off and had a violent intersection collision with another car. The crash killed Sean Waters, an off-duty police officer who was a passenger in the other car, and passengers in both cars were injured.

Lawsuits were filed by Waters's estate and the injured passengers, claiming that Ultimate and its driver were negligent in allowing Powers to leave the van at the Boston bar when they knew, or should have known, that Powers was probably going to drive a car while intoxicated.

Because the driver in this case helped Powers and his friends get drunk (he stopped so they could buy more liquor) the court could have just used this case to extend the state's dram shop liability laws. That would have been bad enough. But the notion that a driving service is somehow supposed to discern the intent of its customers after they leave the vehicle is absurd. It also isn't difficult to see how that level of liability might put a damper on these sorts of services, which would actually make the state's roads more dangerous.

I also wonder what a taxi or limo driver who suspects an intoxicated passenger might drive at some point in the night is supposed to do, particularly if the customer demands to be let out. Drive them around until they're sober? Drive them to a police station? Should they make possibly intoxicated passengers sign a waiver promising not to drive until they're sober?

(Thanks to David Boaz for the tip.)

CORRECTION: The A.P. has posted a correction in the article linked above. The court ruled that this particular case should be heard by a jury, and overruled a lower court's dismissal of the complaint. The ruling basically holds open the possibility that driving services could be found negligent in these sorts of cases. But barring a settlement, the Ultimate Livery Service case will now be tried before a jury.

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hotsauce|12.2.08 @ 11:14AM|#

I imagine that fact that he killed a LEO had a lot to do with the prosecution bringing charges in the first place. The rest, as you say, is redonkulous.

|12.2.08 @ 11:18AM|#

That was my first thought as well.

|12.2.08 @ 11:19AM|#

claiming that Ultimate and its driver were negligent in allowing Powers to leave the van at the Boston bar when they knew, or should have known, that Powers was probably going to drive a car while intoxicated

This is beyond stupid. They guy made the effort to get and pay for a livery service, so it could be assumed he wasn't going to drive.

If I get a cab from LaGuardia to a specific address in Manhattan, would the cab driver have any reason whatsoever to assume I was going to drive after that?

And yes, the fact that it was a cop that was killed probably caused this to go further than it ever would have normally.

Pretty blatant play for the deepest pockets in the situation. If he had stayed at the sports bar all night drinking and then gotten into the same accident, they would have gone after the bar owner.

The Angry Optimist|12.2.08 @ 11:19AM|#

There were no "charges" no "prosecution". This was a civil suit.

Even if they made them sign the waiver, it is doubtful that it would hold up because, hey, you cannot sign stuff drunk.

Mad Max|12.2.08 @ 11:20AM|#

Wait, are you saying that the Massachusetts Supreme Judicial Court makes dumb rulings? That it is guided by impulse and emotion rather than by intelligent analysis of the issues?

We have already seen the quality of the SJC's "reasoning" in the gay-marriage case.

1) Love is beautiful.
2) Miscegenation laws were wrong.
3) Therefore, gay marriage must have the blessing of the law.

A court capable of such an atrocity is perfectly capable of adopting ridiculous liability principles:

1) Drunk driving is bad.
2) It is really bad.
3) Therefore, livery services should be held to strict standards of liability so as to discourage them from taking on drunk passengers.
4) Ha - that'll show 'em!

The Angry Optimist|12.2.08 @ 11:23AM|#

yeah, you gnaw on that bone, Mad Max!

Frankly, your gay marriage hobby horse isn't even relevant to the discussion.

Nannies-R-Us|12.2.08 @ 11:24AM|#

We shall not stop until every shred of responsibility has been stripped from the individual and transferred to the deepest pockets.

Xeones|12.2.08 @ 11:24AM|#

Yo, fuck Massachusetts.

Alan Vanneman|12.2.08 @ 11:24AM|#

Maybe Radley wasn't the guilty party, but I can remember a lot of Reason articles loudly calling for courts that weren't afraid to make bold, tough decisions, public opinion and public majorities be damned.

Because courts have discretion, necessarily, they will inevitably abuse it. The more discretion they have, the greater the opportunity for abuse. The Massachusetts Supreme Court seems to be full of too big for their britches liberals. A court full of too big for their britches libertarians would make similarly wrong-headed decisions, only heading in other directions. Judicial reticence! So often praised, so rarely practiced!

hotsauce|12.2.08 @ 11:25AM|#

Perhaps I shouldn't scan and post. Nonetheless, I still think that type of information would tend to make the plaintiff's case more sympathetic (to the jury).

SIV|12.2.08 @ 11:26AM|#

Good thing the cab didn't take them to a McDonalds drive-thru for coffee.

Boston|12.2.08 @ 11:34AM|#

Looks like there is an update. It appears that the SJC ruled that they could be held liable.

|12.2.08 @ 11:35AM|#

I think this post may illustrate the perils of blogging with understanding what you are talking about. The court did NOT rule that the livery service was liable. Rather, the lower court had ruled that, as a matter of law, no duty existed on the part of the livery service and therefore dismissed the lawsuit. The Massachusetts SJC simply ruled that it could not be said as a matter of law that no duty existed and that the case should go back to the trial court so that a jury could determine whether or not there was a foreseeable risk that the passengers would get out and then drive home given the circumstances of the case and, if there was a foreseeable risk, whether the livery company's failure to take any precaution to prevent the accident was a proximate caused of the accident and resulting injuries.

This is simply a question of line drawing, as in where do you draw the line between when a judge decides an issue and when a jury decides the issue? If the livery company had dropped the man off at his car parked on the side of the road, I doubt many people would complain about the decision. The SJC has simply said that it thinks that that a livery company dropping its customers off at the bar where they were picked up falls on the side of the line which requires a jury, not a judge, to decide the issues.

Mad Max|12.2.08 @ 11:38AM|#

From the opinion:

'We reject the tort defendants' argument that public policy requires that no duty be imposed because finding a duty may cause private carriers to refuse to transport intoxicated persons, thereby allowing more drunk drivers to drive. . . . The dangers of drunk driving, both to intoxicated drivers, passengers in their vehicles, the motoring public, and those lawfully on the highways, have been abundantly documented in terms of "waste of human life," the likelihood of serious injury, and the enormous costs to society. . . . Drunk driving is an egregious violation of public safety against which the public, and public safety officers, cannot guard completely. . . . A drunk driver in his automobile, becomes akin to a lethal weapon on the highways in terms of the destruction that can be inflicted. A private carrier, engaged in the business of transporting persons consuming alcohol, is in a primary position to use care to avoid leaving an intoxicated passenger at a location where it is likely the passenger will drive. Broderick himself understood the danger, and previously had dropped off intoxicated passengers at their homes. Public policy does not condone what occurred here, but instead, strongly supports the imposition of a duty.

'Ultimate, as a commercial enterprise profiting from its business (and the behavior of its passengers) is in the best position to remedy problems, and it should be expected to have in place safeguards that would, to the extent feasible, keep intoxicated drivers off the roads. The burden, imposed on Ultimate, and other private carriers, is not impracticable. Concerns voiced by Ultimate over possible limitations of insurance coverage and higher premiums for coverage, were issues faced years ago by commercial vendors of alcohol, and were adequately dealt with to the satisfaction of concerned parties. When facts exist, such as those described here, the business interests of private carriers must be subordinated to the needs of public safety. Summary judgment on the negligence claims must be vacated.'

Drunk driving is bad, mmmkay? Livery services haven't done enough to stop it. And they have really deep pockets, if you get our drift.

I think Alan is right - if you want to create Frankenstein monsters in the form of courts with broad discretion to write the kinds of laws they want based on ideology and impulse, then *of course* you're going to get decisions like this.

A more modest court, which saw itself as an upholder of the law rather than a continuing law-reform committee, would be less likely to formulate these kinds of broad liability rules.

These issues are linked. Everything is connected, man, just ask any hippie.

Ska|12.2.08 @ 11:38AM|#

So the court is basically telling cab services that if they pick up drunks, they are liable for the drunks' behavior when they leave. Sweet. Or is only their driving behavior?

If the dude was sober would it also be the cab company's fault? What if the guy held up a 7-11 and shot the clerk, instead of an accident?

So basically, unless the cab service drops you off in the desert, they must assume that after spending a drunken night being ferried around in a cab, you will be driving when they drop you off.

Bleh. End rant.

Radley Balko|12.2.08 @ 11:38AM|#

Alan,

I don't know if I wrote what you're referring to, either, but I do think courts shouldn't be afraid to strike down laws that infringe on individual and economic liberty. I don't believe we should entrust basic freedoms and civil liberties to the whims of legislatures and voting majorities.

I think this ruling is wrong. But it's a misnomer to say that courts shouldn't have discretion because some courts may use it improperly. Or that someone who supports activist courts when it comes to protecting civil liberties has no right to protest when activist courts rule to restrict individual or economic freedom.

If the Massachusetts legislature passed a law explicitly holding driving services liable for everything their customer did six hours after exiting the company's vehicle, I'd want the Massachusetts Supreme Judicial Court to strike it down.

|12.2.08 @ 11:40AM|#

bc is correct methinks. this is a much narrower decision than second graph of the AP report lets on. replace "were negligent" with "may have owed a duty of care" and you're on the right track.

still a stupid decision, just not as-sweepingly stupid.

Mad Max|12.2.08 @ 11:42AM|#

bc,

I certainly yield to nobody in my deference to juries, but juries are only supposed to get cases if the plaintiff has some sort of viable claim. Juries provide a safeguard against wrongful decisions by putting the intelligence of the community in the service of the parties, but that doesn't mean any plaintiff gets a full jury trial, with all the expense to the defendant, simply because it has sympathetic facts and a deep-pocketed defendant. Juries are an additional guarantee against arbitrary decisions, but they are not a *subsitute* for intelligent decisions by judges.

Mad Max|12.2.08 @ 11:44AM|#

substitute

libertarian democrat|12.2.08 @ 11:48AM|#

How on earth could they be even remotely liable?

|12.2.08 @ 11:49AM|#

Judges with a jaundiced eye towards and a prejudicial view of government action would be a good thing, I think. Whatever their politics.

libertarian democrat|12.2.08 @ 11:49AM|#

I mean, I 100% disagree with the idea that bartenders might have some liability, etc, but I at least understand the thinking. But the taxi company? Really?

hotsauce|12.2.08 @ 11:52AM|#

I thought juries decided facts. Not law.

Crow Eating Dumbass|12.2.08 @ 11:55AM|#

"1) Love is beautiful.
2) Miscegenation laws were wrong.
3) Therefore, gay marriage must have the blessing of the law."

I think there was a little something about equal protection in there iirc...

I don't agree with the ruling, but traditionally carriers have been held to broader duty than other folks.

|12.2.08 @ 11:57AM|#

Let's see... driving while drunk? Bad. Walking home drunk? or the subway? or a bus? Public intoxication. (Not a problem for some locales, huge for others...) Taking cab? A liability problem for the company. Drinking with your friends in your house? Only OK if they sleep over. Drinking alone in your house? Alcoholism.

At least there's no longer a threat of a slippery slope once you're at the bottom of the slide.

|12.2.08 @ 11:58AM|#

B/4 anybody says boo, they should read the entire case. Grasp the facts and examine all of the doctrines discussed and the evolution of said doctrines.

All the SJC did was make this an issue of fact, not of law.

What if the people, totally drunk, in the van had said to the Ultimate driver when he asked them where they wanted to go, "hey drop us off at the sports bar, we're going to grab a car and drive home now on our own."

So it depends on the facts. And I'd hold Ultimate civilly liable in that instance.

The point is that all the court has said is that as a matter of law, they won't excuse liability. Now, Ultimate could've handled itself reasonably, in which case it might still win if it ever gets before a jury. Probably it will settle, which is the right result.

Also, what's the concern about dram shop laws? Yeah liability can be stretched out, but it would be kind of absurd to say that someone selling alcohol has NO civil responsibility for his sale of that liquor to people who are clearly intoxicated.

dhex|12.2.08 @ 11:59AM|#

the slope is only slippery if you spill your drink.

|12.2.08 @ 12:02PM|#

What if the people, totally drunk, in the van had said to the Ultimate driver when he asked them where they wanted to go, "hey drop us off at the sports bar, we're going to grab a car and drive home now on our own."

What exactly would you propose the driver do in this case? Kidnap them by not letting them out or taking them where they want to go? Strand them somewhere by kicking them out immediately? Call the cops on them, though they have not committed a crime?

Forcing people to be responsible for the actions of others is fucking moronic and leads to this level of stupidity.

|12.2.08 @ 12:03PM|#

Ska: I suppose if the guy were sitting in the back of the car with a couple of guns and a ski mask and suddenly asked to be dropped off at the 7-11, a court might find that the company was liable, particularly if it made no effort to prevent the crime, such as calling the cops as soon as the guy got out of the car.

Mad Max: I would agree that there is a place for use of a judge's discretion. But the question is whether that comes at the outset, before the evidence is developed, or later, after the plaintiff has had a chance to develop evidence in support of his case (for example, evidence might show that the driver had actual knowledge that the customers were going to be getting out and driving straight home). If the evidence does not bear out the plaintiff's case, there will still be ample opportunity later in the case for the judge to intervene (via summary judgment, directed verdict, etc.)

It just doesn't seem to me that this decision represents much of an expansion of liability, if any.

rhywun|12.2.08 @ 12:06PM|#

What if the people, totally drunk, in the van had said to the Ultimate driver when he asked them where they wanted to go, "hey drop us off at the sports bar, we're going to grab a car and drive home now on our own."

So what? It's none of the car service driver's goddamn business what the passenger does when he leaves his car.

|12.2.08 @ 12:06PM|#

Read the facts! The limo driver dropped off Powers (the drunk driver) at a car owned by Powers' girlfriend. The limo driver knew that Powers was intoxicated. He had observed Powers grow increasingly intoxicated throughout the night.

Let's face it: The limo driver did not comport himself very well. The limo company and its driver facilitated Powers' intoxication. Under such circumstances, the limo company should be duty bound to drop customers off at their homes or hotels. Personal responsibility demands nothing less.

rhywun|12.2.08 @ 12:09PM|#

It just doesn't seem to me that this decision represents much of an expansion of liability, if any.

Hmph. Wait'll a jury gets done with it. The unintended consequences will be impressive.

|12.2.08 @ 12:11PM|#

Hey, didn't these guys use gubmint roads to commit their act? And paid using gubmint monies!

And I bet they used a car, made by a for-profit company no less, to cause the accident! And...and...what about the companies that made the glasses and bottles the booze was stored and served in? And what of the mixers? They have no part in this? Say now, wasn't a waitress involved at some point?

Justice won't be served (giggle) until ALL the guilty are rounded up and punished!

|12.2.08 @ 12:13PM|#

Under such circumstances, the limo company should be duty bound to drop customers off at their homes or hotels. Personal responsibility demands nothing less.

What are you talking about, mike? Why is the limo driver in any way responsible for someone else's actions?

|12.2.08 @ 12:14PM|#

Epi-

The facts are not limited to A being responsible for B. Here, A knowingly assisted B's intoxication and A left B in a position that any moron would realize is a recipe for disaster. Why shouldn't the limo driver be responsible for his actions?

Alice Bowie|12.2.08 @ 12:16PM|#

The Limo driver is by NO MEANS responsible for the acts of his passenger once dropped off.

If we're going to charge the Limo driver, we might as well charge the Limo Driver's Parents, sisters, neighborhors, significan others, bookies, and hairstylist.

Alice Bowie|12.2.08 @ 12:18PM|#

i forgot to mention the lady that maintains my hairpiece.

|12.2.08 @ 12:20PM|#

Why shouldn't the limo driver be responsible for his actions?

Because the fucking limo driver didn't force him to get behind the wheel! If we follow your line of thinking, we will have people policing other people's behavior. Do you want that?

Again, answer my question above: what exactly should the limo driver do to not be liable in your world?

|12.2.08 @ 12:21PM|#

Read the facts! The limo driver dropped off Powers (the drunk driver) at a car owned by Powers' girlfriend. The limo driver knew that Powers was intoxicated. He had observed Powers grow increasingly intoxicated throughout the night.

What in is the cab driver supposed to do? Taser these clowns and sit on them until they sober up or the cops arrive?

Seriously. WTF is a private company supposed to do that doesn't violate their customers civil rights? Are they supposed to have their own drunk tank? What is a "reasonable action" as defined by the court?

Should they simply refuse service? There's no way a jury would find against them there. [ /sarcasm] It seems the cab service would be fucked no matter what they do: carry them and be liable. Refuse an intoxicated passenger and watch the civil suits fly for not preventing an accident.

Why shouldn't the limo driver be responsible for his actions?

Repeat after me: you are responsible for your own actions. I am not responsible for you; you are not responsible for me.

|12.2.08 @ 12:25PM|#

The limo driver, like any other person, has a duty to prevent harm to others. This duty is conditioned upon the reasonable foreseeability of harm in the particular circumstances. The law has long recognized this and it is expressed in section 302 of the Restatement (Second) of Torts. Thus, if you are the limo driver and you have observed and facilitated the intoxication of one of your passengers, what part of it is reasonably foreseeable that if you drop off the intoxicated passenger at a car that the intoxicated passenger may operate the car at which you dropped him off don't you folks get?

|12.2.08 @ 12:28PM|#

The limo driver assisted Powers in getting drunk. He left Powers off at a car knowing that Powers was inebriated. He was not forced to leave Powers at the car.

Moreover, the court did not opine that the livery company is liable-it left that matter for the jury.

|12.2.08 @ 12:30PM|#

"Thus, if you are the limo driver and you have observed and facilitated the intoxication of one of your passengers, what part of it is reasonably foreseeable that if you drop off the intoxicated passenger at a car that the intoxicated passenger may operate the car at which you dropped him off don't you folks get?"

Again, what was he supposed to do? Not let him out of the limo? That would be false imprisonment last I looked. Kick him out of the limo? That would subject the limo driver to liability if something bad happens to the drunk guy after being kicked out of the limo.

I don't see how you can hold the limo driver responsible without explaining exactly what he could have done that would not have broken the law or potentially subjected him to liability for other accidents. What is happening here is the courts are enacting prohibition through litigation. Whenever someone gets drunk and harms someone else, everyone even remotely connected to the guy must be responsible. The net effect is to make drinking or being associated with it so dangerous that people don't do it.

Chuck|12.2.08 @ 12:31PM|#

So, let's suppose that I meet a woman at a bar, buy her several drinks, sit and chat for a while, and then walk her out to her car at the end of the night. If she gets into an accident on the way home, am I liable?

rhywun|12.2.08 @ 12:32PM|#

what is he supposed to do instead?

Go out of business?

|12.2.08 @ 12:33PM|#

"So, let's suppose that I meet a woman at a bar, buy her several drinks, sit and chat for a while, and then walk her out to her car at the end of the night. If she gets into an accident on the way home, am I liable?"

You shouldn't be, but by this and other courts' logic you are. It goes against every tenent of the common law and any sense of justice. But when it comes to drunk driving people are utterly irrational.

rhywun|12.2.08 @ 12:34PM|#

If she gets into an accident on the way home, am I liable?

Only if you have more money than the bartender.

|12.2.08 @ 12:36PM|#

Epi-

The driver could have driven Powers home. He could have dropped him off at the bus station. Even the police station.

If the limo driver was faced with a belligerent, intimidating, threatening passenger who insisted upon being dropped off at a car, then that fact would, at least for me, tend to absolve him (limo driver).

The net effect is to make drinking or being associated with it so dangerous that people don't do it.

Exactly.

If I were a livery service or a cab company I would put a moratorium on taking intoxicated passengers (or even transporting people to/from places that serve alcohol) until the state passed a law limiting my liability.

This is a stupid decision. If I come out of a bar, and hail a cab to and tell the driver to drop me off at a parking lot, what should the cab do? Refuse to take me? Play twenty questions trying to figure out how intoxicated I am or whether I intend to drive? How is the driver supposed to know if I'm gonna drive, or if I am just gonna sleep it off in my car?

The only person who should be held liable is the guy who drove drunk. Period. Not the company that was chauffeuring him around keeping him off the streets the majority of the night.

Thus, if you are the limo driver and you have observed and facilitated the intoxication of one of your passengers, what part of it is reasonably foreseeable that if you drop off the intoxicated passenger at a car that the intoxicated passenger may operate the car at which you dropped him off don't you folks get?

This is a strained interpretation. If the limo driver had gotten out and offered explicit assistance with the car (getting in the car, starting it, finding the keys, etc.) I'd agree with you. But he didn't. At what point does this new-found liability end? What if there was no harm but, there was a DUI issued? Should the limo company be liable to the cited driver? what if the drunk assaulted his girlfriend afterwards? Is the limo company responsible for all behavior for intoxicated passengers?

Again, what is is to stop the assignment of liability when service is refused under similar circumstances? Why isn't it more reasonable that the drunk driver is assigned strict liability for not taking precautions prior to a drinking episode that he knew was going to happen to prevent himself from driving drunk?

Nannies-R-Us|12.2.08 @ 12:37PM|#

The only logical way to prevent this type of tragegy is to return to the War on Alcohol (otherwise know as prohibition).

|12.2.08 @ 12:39PM|#

The driver could have driven Powers home. He could have dropped him off at the bus station. Even the police station.

And what if the drunk still proceeded to walk to his car and the results are the same? Do we say that the reasonable actions weren't sufficient?

Do we stop assigning liability when the limo drivers tucks the drunk into bed? Seriously. When does the liability of the limo company end?

|12.2.08 @ 12:40PM|#

The driver could have driven Powers home. He could have dropped him off at the bus station. Even the police station.

He could? Even if Powers told him to take him to his car? Anything else is kidnapping. So I guess you have no problem with that.

The driver could have driven Powers home. He could have dropped him off at the bus station. Even the police station.

Dropping him off at a bus station open the driver to liability, no? What if the guy gets mugged at the bus station? Or wanders away and gets hit by a car trying to hail a cab?

Take him to the cops? And what would the cops do to him? Arrest him for being drunk?

And anyway, how would a driver know if the guy was gonna get in his car and drive, or get in his car and sleep it off until he is capable of driving?

Would the customer then be allowed to refuse to pay since he isn't being taken to the destinations he wanted but is instead being taken wherever the driver sees fit?

If the limo driver was faced with a belligerent,
intimidating, threatening passenger who insisted upon being dropped off at a car, then that fact would, at least for me, tend to absolve him (limo driver).

That makes sense. Add an incentive for the drunk to escalate and force a confrontation in order to get where the drunk wants to go.

This is stupid on so many levels.

|12.2.08 @ 12:49PM|#

Agreed
"Yo, fuck Massachusetts."

Odd, how a court system that will not allow someone to testify to someone's thoughts, could hold someone liable for what they may or may not do.

My favorite word"retarded"

hotsauce|12.2.08 @ 12:49PM|#

I think joe is secretly posting as liberymike.

|12.2.08 @ 12:51PM|#

It appears that many of you are operating upon the premise that the limo driver was a standby unconnected to the events.

squarooticus|12.2.08 @ 12:51PM|#

First, Boston refuses to run the transit system at night, forcing drunks into cabs or cars.

Then, they insanely assign liability for a drunk's actions long after getting out of the taxi to the taxi company/driver, forcing more drunks into cars as the cabs respond rationally by refusing to carry drunks.

I conclude that MA actually wants people to drive drunk.

How can you not love this state? Holy fuck. (Simpsons nerds: envision my mind breaking down like Frank Grimes.) I am leaving this hellhole as soon as humanly possible.

rhywun|12.2.08 @ 12:52PM|#

I don't understand the relevance of "Massachusetts", except to dump on a librul state. You're crazy if you think this couldn't happen anywhere in the USA.

|12.2.08 @ 12:55PM|#

The limo driver, like any other person, has a duty to prevent harm to others.

This is stupid, and why the second restatement of tort is a pile of shit just like the so called reasoning in the judicial realm. So, if I really do have a duty to prevent harm, I should just stay in my house and NEVER get into my car. I should never own a gun lest some slack jaw idiot called a lawyer "reasonable forsees" that I might have an accident.

This duty is conditioned upon the reasonable foreseeability of harm in the particular circumstances.

You know, legal scholars really are idiots. Once you put that word "reasonable" into anything, it makes the whole sentence useless. There is no objective standard as to what is reasonable. Who do you want to decide that?
HAve you ever participated in voir dire? Have you seen the quality of slack jaw idiots that lawyers intentionally chose to keep on a panel?

Replace "reasonable" with some kind of rational argument about probability, and how much probability a person should be able to "forsee" (fuck some of these idiots in the legal field think you should damn near be omnipotent.) and I will have some sort of respect for of a field that mocks the concept of reason.

|12.2.08 @ 12:56PM|#

Hotsauce-

Yeah, I know that my posts on this issue sound more like Joe than me.

William Powers, along with five other men, had hired Ultimate to take them to a bachelor party on the night of Aug. 11, 2001.

Full stop. These guys were going to a bachelor party. Unless these have changed in the past few years, I recall serious drinking as a part of these parties. These 6 *knew* heavy drinking was going to occur that night and didn't take reasonable precautions to prevent themselves from driving before they sobered up.

You know, like having the limo pick them up at their homes, instead of wherever they drove to, and leaving their car keys inside.

No, it's the limo driver's fault for not doing something to the passengers that is mysteriously undefinable and not further tortuous.

libertarian democrat|12.2.08 @ 12:57PM|#

I still think MA is awesome, overall. Just look at the CATO/balko raid map. There are so many good things here. (At least until there are enough porcupines up north).

|12.2.08 @ 12:58PM|#

"I conclude that MA actually wants people to drive drunk."

I think you are right. The more people drive drunk the more money the state gets from arresting and fining them and the more justification they have to expand state power. Imagine for a moment if drunk driving disapeared from the earth. The states would be out of a lot of money. Cops would have to find something else to do. A lot of lawyers and judges would be out of work. Why would anyone want that?

|12.2.08 @ 12:59PM|#

libertymike,

I think you're skipping the proximate cause issue in your assessment of liability. Or, at least, compressing it. A lot of things are foreseeable--that alone isn't enough. In this case, there needs to be a breach of duty at least, and it's not clear that there is one here.

I don't object to the doctrine of vicarious liability in general, provided that the liability is not strict liability and is reasonably connected to the wrongful act of the vicarious actor.

So if was drunk and took the T back to the parking garage, are the station employees now responsible for not making sure I wouldn't be driving?

J. P. Carlo|12.2.08 @ 1:00PM|#

>>If the livery company had dropped the man off at his car parked on the side of the road, I doubt many people would complain about the decision.

|12.2.08 @ 1:03PM|#

(sorry about the improper posting above... the blog didn't parse my punctuation as expected...)

"If the livery company had dropped the man off at his car parked on the side of the road, I doubt many people would complain about the decision."

How so?

If I get in a cab and ask to go to "58th and Broadway," or "96th and Columbus," or "Delancey and the Bowery," how does the cab driver know I'm going to get in a car and drive away? Perhaps I live there. Perhaps I'm meeting somebody at a coffee shop at that corner. Or maybe I'm going to get on a train from there to take me the rest of the way home (which is far cheaper than cab fare all the way out to the boonies).

More to the point, how does the driver assess my blood alcohol content?

In any event, a verdict for the plaintiffs in this case sets a chilling precedent. Does this mean that a cab driver has discretion over whether or not to let me out of his cab when we get to my desired destination? Does this mean that every time I get into a cab from now on, I have to prove to the driver's satisfaction that I'm not going to do anything illegal when I get out?

Yet another instance of guilty until proven otherwise.

rhywun|12.2.08 @ 1:03PM|#

Cops would have to find something else to do.

I've read individual cops express such opinions, but until a state-sanctioned quote surfaces, I will continue to relegate such nonsense as so often pops up around here to the realm of "conspiracy theory".

">>If the livery company had dropped the man off at his car parked on the side of the road, I doubt many people would complain about the decision."

I would have. Again, what was he supposed to do, refuse to let the guy out of the car? Kicked him out away from his car and left him to the four winds? No one is responsible here but the guy who drank and crashed the car, period.

|12.2.08 @ 1:04PM|#

It appears that many of you are operating upon the premise that the limo driver was a standby unconnected to the events.

Did the limo driver do any of the following:

-Actually provide the liquor
-Drink with the passengers
-Physically facilitate the driving of the drunk's car
-Provide funds to purchase the liquor

Or, did he just do what he was hired to do: drive the passengers to where they wanted to go?

mike, you keep dodging a very simple question: At what point does the liability of the limo driver/company end regarding their passengers' behavior?

|12.2.08 @ 1:05PM|#

"Under such circumstances, the limo company should be duty bound to drop customers off at their homes or hotels. Personal responsibility demands nothing less."

And how, pray tell, does the limo driver determine that he's dropping you off at your home or hotel?

What's next - a cab driver demands to see government-issued ID when you get in, and will only drop you off at the address listed on your driver's license?

(And what if he drops you off at home - which is perhaps the most likely place for your car to be - and you then take off and drive from there?)

"No ID, no ride."

|12.2.08 @ 1:06PM|#

"I've read individual cops express such opinions, but until a state-sanctioned quote surfaces, I will continue to relegate such nonsense as so often pops up around here to the realm of "conspiracy theory"."

I was being flippent. But at this point, I don't think anyone in power really cares about the drunk driving rate or saving lives. These kinds of rulings and laws are about control, they are not about safety. If they were about safety, governments would be looking at what measures actually effect the fatality rate and conentraiting on those. Instead, governments always go for the sollution that exerts the most control and government power and never seem to care one way or another whether such measures actually do any good.

Mad Max|12.2.08 @ 1:07PM|#

These complications show why, if there's going to be regulation of the limo services, that regulation should come from the legislature. Remember them? The people who are responsible for passing new laws to deal with new conditions? The legislature could decide whether limo services need dram-shop-style liability, or some special regime of regulation.

At least with dram-shop liability, it was legislatures who imposed it, setting standards which limit judicial discretion.

Or maybe, instead of enhancing liability, legislatures could simply pass special taxes on limo services to compensate for the alleged harm their activities do to the community. Naturally, in the debate over such laws, the legislature would have to consider whether the number of drunk-driving fatalities *prevented* be limo services is more important, or less important, than drunk-driving fatalities *encouraged* by limo services.

A limo services seems a little bit different from a merchant who sells alcohol, because unlike these merchants, the limo services take concrete action to limit the number of drunks who get behind the wheel. So maybe the limo services shouldn't be held to as strict standards.

These are all valid legislative considerations. But imperial judges are impatient with the unreliable, racist, sexist, heteronormative legislatures, so these courts insist on writing their own laws.

|12.2.08 @ 1:13PM|#

'Drinking alone in your house? Alcoholism.

At least there's no longer a threat of a slippery slope once you're at the bottom of the slide."
what about being so drunk you pee your pants? Or puke all over your expensive Persian rug? Its the fault of the makers of Duff, that wonderful stuff - not me.

Geotpf|12.2.08 @ 1:19PM|#

The correction changes the article from WTF? to reasonable, IMHO.

thoreau|12.2.08 @ 1:29PM|#

On the issue of whether the court ruled correctly in sending the case to a jury rather than dismissing it out of hand, I have to defer to the court here. I don't know all the standards and procedures in these cases, but I suspect that sending it to the jury is a narrower sort of ruling than deciding the more general issue of liability for taxi and limo companies dropping off drunks.

On the more general question:

There's a difference between what I think a decent person ought to try to do and what I think a person should be held legally responsible for preventing. If I dropped off some drunks at a bar and they hadn't booked a trip home, I'd probably at least inquire whether they'll need a ride home. (Leaving aside the ethics for a minute, from a business point of view this seems like an opportunity to make another sale.) If they said that they'd made arrangements, I'd probably mind my own business. If they said they were going to drive, I'd probably try to talk them out of it.

If they couldn't be talked out of it? Well, calling the cops seems like a good course of action, but I'm reluctant to fault an employee (especially a guy on the bottom rung, working for tips) for not calling the cops on a customer. It seems like a bad spot to put him in. Maybe call the home number of the person who made the reservation, and tell whoever is at home that you're concerned for the safety of the customer? But I'm not sure that a bottom-rung employee working for tips wants to start calling a customer's family and reporting him.

So I'd probably call my boss and ask him what to do, and make it the boss's problem. I don't want to see anybody drive drunk, but I don't think you can really ask the guy at the bottom of the ladder who works for tips to take on the task of getting a customer in trouble.

What should the boss do? He has more discretion than the driver, but there's still a limit. If at any point the customer says "Mind your own business, we've got this handled" you sort of have to back off.

|12.2.08 @ 1:42PM|#

So hold them liable for the person's actions. Next time you have been drinking or you're a stupid teenager or look like a drug dealer, you go to get in a limo or cab, guess what? They may refuse you service, where does their liability end?

Naga Sadow|12.2.08 @ 1:44PM|#

Hmmmmmm . . . this does not bode well for a bartender as well as taxis.

"ACTION IS REQUIRED! WE MUST HAVE SOME ACTION!"

|12.2.08 @ 1:44PM|#

The only thing I could see would be a law requiring a taxi driver to ask, "Have you had anything to drink tonight?," and if the answer is "Yes," to follow up with, "Are you going to drive at all tonight?" If the answer to the latter is "Yes," then the driver would read from a script and there would be a pamphlet or something he would hand to the customer.

That said, these would quickly become one of those "Did you pack your own bags" questions.

There's nothing preventing the passenger, of course, from lying, but it would go far to absolve the taxi company of liability.

(Of course, the passenger could also tell the driver to go have sexual intercourse with himself, in not so many words - what's next - will they make it a federal crime to raise your voice to a cab driver?)

(And of course, drinking passengers who are uncomfortable with having to lie to a cab driver about their plans may feel ever so slightly more compelled to forgo the whole cab thing, and drive instead. And that is precisely the unintended consequence we're trying to avoid.)

Mad Max|12.2.08 @ 1:52PM|#

"I suspect that sending it to the jury is a narrower sort of ruling than deciding the more general issue of liability for taxi and limo companies dropping off drunks."

It is necessary to look at the incentive structure created (intentionally) by the courts. If, under a given set of facts, the case can be sent to jury, raising the possibility of heavy damages, this is going to cause a ripple-effect in the business community, and the court knows it - that's why they issued the decision.

They want limo services to be more "responsible" - but how will this work out in practice? Maybe the limo services will work out a way of helping customers without incurring liability. Maybe they'll figure out a way to keep their business model going while avoiding what courts will consider unnecessary risks of passengers getting into their own cars while drunk. If that happens, we still have to ask why to impose a unique burden on these limo services, who are at least trying to respond to a market need from people who want to be chauffeured around when they realize they may be too plastered to drive themselves.

The other scenario is that the limo services will adopt protocols to avoid the risk of driving drunkards to their own cars. Will this involve screenings to determine blood alcohol content? Not allowing passengers to drink in the limo (a fact noted, with ominous overtones, in the SJC's opinion)? Refusing passengers if they seem too drunk?

Maybe some people will hesitate to get into the limo business in the first place - "too much risk - these drunks could get us into legal trouble - better open a sex toy store instead." How can we document the instances of people who don't even venture into the business at all, for fear of liability?

I doubt very much that the SJC has actually done a careful, law-and-economics-style analysis of the balancing of risks. They just want the credit of making an "anti-drunk-driving" decision.

|12.2.08 @ 2:18PM|#

There's nothing inherently crazy about this ruling when you realize that it turns on

1) the higher standard of care imputed to a common carrier
2) the standard for summary judgment in this case (in laymen's terms: that there ain't no way, no how on god's green earth that the driver didn't know they were drunk when he dropped them off)

Jury question as to what the driver knew or didn't know. No big whoop. Nothing earth-shattering or revolutionary here.

Also, as to whomever mentioned that the legislature should regulate the limo service: tort law has traditionally been heavily shaped by decisional law, not statutory law. It's that whole common law thing that we inherited from the limeys.

Mad Max at December 2, 2008, 1:52pm: Given that judges in MA are appointed, not elected, I doubt they care about "credit."

rhywun|12.2.08 @ 2:25PM|#

No wonder this thread died--everyone's having "fun" on the Wal-Mart thread. Too bad I avoid Wal-Mart threads like the plague.

|12.2.08 @ 2:30PM|#

If one accepts passengers for a fee knowing that the passengers are going to get FUBAR does not one bear some responsibility for one's actions?

Keep in mind that in Mass, limo companies are exempt from the state's open container statute. Thus, if one accepts pasengers for a fee and picks ups the passengers in a bar and observes that the passengers are already tipsy and one then drives to a liquor store so the passengers can buy more booze and one observes the passengers get increasingly drunk, one has facilitated the open and notorious consupmtion of adult beverages. Hence, should not the limo company take some common sense steps to avoid danger that is eminently foreseeable?

Many posters have leaped to doomsday scenarios not part of the court's opinion. The opinion is narrow and is limited to the facts presented.

Meeting a women at a bar and buying her drinks and observing her get into her car intoxicated is not the fact pattern presented. The woman is not paying you for a service and you are not a carrier for hire. There is a certain control factor present in the limo case but not in the hypothetical proposed above. The limo company has the power to control whether booze will be consumed in its vehicles.

The SJC has already addressed a similar fact pattern in Cremins v Clancy, 415 Mass 289 (1993).

David Ross|12.2.08 @ 2:30PM|#

So, in essence, this is a judicial "punt". But that's bad enough. Instead of being decided by a sober judge, it's going to be decided by twelve people whom we have to pray are not idiots.

The Duke lacrosse case is coming to mind. Not every case should go to trial.

Here's another thought to drive you to drink (at home and alone of course): if the trial goes against the livery service, expect various taxi / limo lobbyists to call upon the legislature to fix the mess. Then we can get new regulations which say that this limo company can operate but not that one. A bit like how some establishments are arbitrarily allowed to serve alcohol and others aren't.

|12.2.08 @ 2:35PM|#

There's nothing inherently crazy about this ruling when you realize that it turns on

1) the higher standard of care imputed to a common carrier

Does that standard of care apply after the carrier has completed his trip and dropped off his passengers? I don't think so. I don't see how it could, because the carrier has no authority or ability to control what the passenger does when they leave his vehicle.

2) the standard for summary judgment in this case (in laymen's terms: that there ain't no way, no how on god's green earth that the driver didn't know they were drunk when he dropped them off)

That isn't really the issue in this case. So they were drunk - what was the legal duty of the driver? Again, I just don't see how the driver has a duty to keep his passengers from driving drunk, partly because you don't have a duty to do things that you do not have the legal authority to do.

This case should have been summarily dismissed, because, regardless of the facts, there is no legal basis for recovery.

rhywun|12.2.08 @ 2:54PM|#

The limo company has the power to control whether booze will be consumed in its vehicles.

Nobody is going to hire a limo for a bachelor party that doesn't allow booze. I guess that fits, because what you're advocating will ensure the destruction of the entire taxi/car service industry anyway.

|12.2.08 @ 2:58PM|#

So I guess this precedent will now apply to every drunk who staggers off public transit and later drives.

cunnivore|12.2.08 @ 4:00PM|#

Nobody is going to hire a limo for a bachelor party that doesn't allow booze.

If no limo service allows booze onboard, then the partiers won't have much choice.

Besides -- I thought it was illegal to drive with an open container in your car.

rhywun|12.2.08 @ 4:18PM|#

the partiers won't have much choice

I'm sure many of them will choose to stay home. And many more will choose to find a buddy to drive them around, or take the chance of driving drunk. All far less appealing choices forced upon them because of the inability to make people responsible for their own actions.

I thought it was illegal to drive with an open container in your car.

It's a limo service, not a personal vehicle.

|12.2.08 @ 4:49PM|#

All far less appealing choices forced upon them because of the inability to make people responsible for their own actions.

I think it's even worse than that. The thinking with this kind of case is not to shift the drunk driver from responsibility but to find as many people as possible to blame and punish when something terrible happens, no matter how tangential their involvement.

It's primarily a tort lawyer's game, but as a society, we apparently have enough people with the sort of underlying thinking to allow it to happen. It's how you get cases like this one.

Robert Goodman|12.2.08 @ 6:01PM|#

No way this should ever be allowed to go to trial. Assume all the facts about the limo driver's knowledge go against the limo co. The driver took the passenger from a sports bar and left him at the same sports bar. Since when do you have liability bcause you returned things as far as you could to the condition they were in when you found them??? The person could've gotten just as drunk and driven from the sports bar if he'd never taken the limo anywhere. I don't see how the van driver could be said to have facilitated drunkenness if the passenger started at a bar! And the stop in between was at a strip club, where there was more drinking, so refusing to drive him back from the strip club wouldn't've made him any less drunk, nor altered the fact that he intended to return to his car at the sports bar, which he would've found some way to do. And remember, he hadn't hired the livery for himself, he was one of a group of several traveling by van.

So yeah, summary judgement.

|12.2.08 @ 6:40PM|#

The limo driver left him at a car!

Robert Goodman|12.3.08 @ 6:25PM|#

"The service didn't drop the passenger off at a parking lot, or at his car. It dropped him off at another bar."

|12.4.08 @ 4:56PM|#

""""A knowingly assisted B's intoxication and A left B in a position that any moron would realize is a recipe for disaster.""""

Alcohol and humans are a recipe for disaster. Accepting the above claim would pretty much end the existance of bars, being that bartenders play the role of A every friggin night.

"""I don't see how the van driver could be said to have facilitated drunkenness if the passenger started at a bar! """

But a cop is dead, so common sense must not be an obstacle.

But then again we are talking about the same state that can't tell the difference between a bomb and movie promotional materials with lights.

I would be curious to know if MA has already tried to prosecute bartenders for their clients drunkeness and got shot down, so the cab driver is the next target. The bartender had more to do with the guys drunken state than the cab driver.

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