A hit and run twenty-year old driver severely injured a pedestrian while operating his vehicle with a blood alcohol level of 0.192 percent. The driver had consumed alcohol at an unauthorized after hours pool party at an apartment complex. The apartment’s night time front desk concierge facilitated the party by letting the party-goers into the pool – all against the complex’s policy and training. With only one potential deep pocket, the plaintiff’s attorney got creative with multiple theories of liability against the complex, i.e. social host liability, negligent hiring, and respondeat superior.
The result was a $7.4 million judgment in the case of Lau v. Seabring Associates. However, the appellate division found that the blend of theories and resulting jury charge fused disparate theories of liability to the extent that it had no confidence that the jury properly evaluated the various claims. While it did not disturb the damages awarded, it did reverse with instructions for a new trial on liability.
On the day of the accident, defendant’s youthful front-desk concierge allowed unauthorized individuals into the building, provided unfettered access to the pool area, and allowed alcohol to be consumed in the pool area, while guarding the closed circuit television surveillance system so that he alone could monitor the pool activities. The complex contended its employee’s actions were violations of its policies and his duties.
The trial judge instructed the jury on respondeat superior, social host liability, and negligent hiring. On the issue of respondeat superior, the Appellate Court reasoned that no reasonable juror, when properly instructed could dispute that the defendant’s employee acted outside of the scope of his employment, thereby relieving defendant of liability for the unauthorized actions of its employee. As for social host liability, the Appellate Court noted that the social host liability statute applies only to service of alcohol to adults. Service of alcohol to a minor is governed by common law negligence principles. However, the record was devoid of evidence to impose liability on the complex since it could only be liable through the actions of its employee under respondeat superior, a theory for which the Court had already found no evidential support. Yet, the Court found that there was sufficient evidence to support a negligent hiring claim. It noted that the concierge had recently been promoted from lifeguard and was the youngest person to be hired for that job. The Court reasoned that there was sufficient evidence based upon his inexperience, youth, and lack of training to support a negligent hiring claim.
Thus, the court remanded the case for a second trial on liability issues only. Ultimately, the second trial did not go forward due to a high-low settlement agreement entered into between plaintiff and defendant.
Special thanks to Emily Kidder for her contribution.
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