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Burroughs v. Com.12/9/1996
in the performance of any lawfully ordered military duty." G. L. c. 258, § 1. For all that appears in the evidence, Morgante's bartending was nothing other than a way of relaxing and socializing that he performed without compensation and that was neither explicitly nor implicitly ordered or even requested by his superiors. The evidence would not have warranted a finding that Morgante's "conduct . . . of the kind he employed to perform" or that it was "motivated, at least in part, by a purpose to serve the [Commonwealth]," Wang Lab., Inc. v. Business Incentives, Inc., supra at 859. The evidence would not have warranted a finding that his conduct, bartending at the NCO club, was "the kind of thing that in a general way" part-time National Guardsmen do. See Kansallis Fin. Ltd. v. Fern, supra.
We turn now to the question whether the evidence would have warranted a finding of the Commonwealth's negligence under the "social host" theory of tort liability. In McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 162, 496 N.E.2d 141 (1986), we stated:
"We would recognize a social host's liability to a person injured by an intoxicated guest's negligent operation of a motor vehicle where a social host who knew or should have known that his guest was drunk, nevertheless gave him or permitted him to take an alcoholic drink and thereafter, because of his intoxication, the guest negligently operated a motor vehicle causing the third person's injury."
Thereafter, in numerous social host cases, we have held that a social host is not liable to a person injured as a result of a guest's excessive consumption of alcohol that was not owned or furnished by the host. See Mosko v. Raytheon Co., 416 Mass. 395, 622 N.E.2d 1066 (1993); Cremins v. Clancy, 415 Mass. 289, 612 N.E.2d 1183 (1993); Ulwick v. DeChristopher, 411 Mass. 401, 582 N.E.2d 954 (1991). We reasoned that, as a practical matter, a social host ordinarily lacks the ability effectively to control his or her guests' consumption of alcohol not owned or furnished by the host. See Mosko, supra at 402; Cremins, supra at 294; Ulwick, supra at 406.
It may well be that the rule and rationale of the cited cases should not apply to this case where the host's ability to control the supply of liquor provided by others would appear to be significantly greater than the ability of the social hosts in those cases. We need not decide that issue, however, because the plaintiffs have not identified, and we have not discovered, sufficient evidence in the instant case to warrant a finding that anyone, while acting within the scope of his or her employment by the National Guard (i.e., Commonwealth), either by action or inaction failed to exercise that degree of care, vigilance, and forethought that an ordinarily prudent person would have exercised to ensure that no underage or intoxicated person would have access to alcoholic drinks while at the NCO club. As we have discussed above, Morgante was not shown to have been such a person. The plaintiffs have not identified, and we have not found, evidence to show that, in allowing Morgante to tend bar or in any other way, those in authority at the armory failed to take reasonable precautions to prevent that which occurred and gave rise to this litigation.
Because there was insufficient evidence to warrant a finding for the plaintiffs on either theory of their case, we reverse the judgment and order the entry of judgment for the Commonwealth.
So ordered.
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