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Bruce v. Chas Roberts Air Conditioning Inc.5/31/1990
eave and cause an accident some time later.
The majority also distinguishes Dickinson by observing that the employer in the case before us did not sponsor an event and did not furnish the beer its employees drank. Here, however, the employer benefitted from allowing the beer drinking on its premises because that activity kept employees available for performing additional work as the need might arise. I see no conceptual difference between asking employees to attend a work-related banquet where alcohol is served, and suffering them to drink alcohol on the employer's premises so that they will remain on hand
for further work. In both situations, the employer is using alcohol to further his business purposes.
I also think that the Supreme Court of Washington's rationale in Dickinson bears on the interpretation of the Restatement (Second) of Torts section 317 (1965). Under that section, an employer has a duty to control his employee who is acting outside the scope of his employment if the employee is conducting himself so as to create an unreasonable risk of harm to others and if the employee is on the employer's premises. The majority points out that in the case before us the employee was not on the employer's premises at the time of the accident. True, but under the rationale of Dickinson the employee in the case before us was on the employer's premises at the time the employee did the act, or more precisely did one of the acts, that caused the accident. Chas Roberts Air Conditioning, Inc. had every right to tell its employee, Michael Duarte, not to drink beer on its premises. In short, I do not agree with the majority's conclusion that the employer could not be liable under the Restatement section 317.
The difference between the Restatement and Dickinson is, of course, that under the Restatement the employer would not be vicariously liable. Where the employer benefits from the employee 's conduct, I believe that the rule laid down in Dickinson should apply.
Finally, I cannot ignore A.R.S. section 4-301. It provides:
A person other than a licensee or an employee of a licensee acting during the employee's working hours or in connection with such employment is not liable in damages to any person who is injured, or to the survivors of any person killed, or for damage to property, which is alleged to have been caused in whole or in part by reason of the furnishing or serving of spirituous liquor to a person of the legal drinking age.
Since the employer in this case did not furnish liquor to the employee , the statute does not, by its terms, apply. I acknowledge that the law as I interpret it, juxtaposed with this statute, results in an anomaly. An employer, like the one in Dickinson who actually furnishes liquor would not be liable, while an employer which suffers its employee to drink in furtherance of a business purpose, may be responsible for injuries caused by that activity. The resolution of this anomaly is a problem for another day.
General Footnotes
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