Attorney General's Opinion
Attorney General, Richard Blumenthal
December 21, 1993
Honorable Allan A. Crystal
Department of Revenue Services
Ninety-Two Farmington Avenue
Hartford, CT 06105
Dear Commissioner Crystal:
You have asked what liability, if any, a state agency would have "with respect to any incidents arising at, during or after" an off-site holiday party attended by agency employees during working hours. Under the facts as you have described them, we conclude that it is unlikely that any liability would attach to the state agency for the actions of its employees.
The factual scenario you have presented and which we use as a basis for this opinion involves a holiday party organized and attended by state employees, which is held during working hours, but which is not sponsored or arranged by the state agency itself, and which is held at a location off-site from state government facilities. An employee committee, acting on behalf of the agency's employees but not under the official aegis of the agency itself, makes all arrangements with the off-site facility for "entertainment, the meal and such wine, beer or liquor arrangements which they may provide." It is assumed that individual employees pay for their own attendance at the event, including their food, liquor, and entertainment, and that attendance is strictly voluntary on the part of each employee.
Your request asks generally about state liability for "any incidents arising at, during or after the event." Although it is impossible to imagine and consider every conceivable set of circumstances that might give rise to a claim of liability, certain general principles apply.
Under Conn.Gen.Stat. § 4-165, the state may be liable for injury or damage caused by the action of a state officer or employee which is "not wanton, reckless or malicious," and which is "caused in the discharge of [the employee's] duties or within the scope of his employment."1 For the state to be liable for a state employee's action then, two requirements must be satisfied: first, the action causing the injury must not be wanton, reckless or malicious; and second, the action must have occurred in the discharge of official duties or within the scope of employment.
Under the factual predicate you have provided, it is unlikely that the state would be liable for injuries caused or suffered by its employees because these injuries would appear not to have occurred in the discharge of official duties or within the scope of employment. As posited, the holiday party is strictly a voluntary, social activity whose only connection with the state as employer is that it is being attended by state employees during working hours. There is no suggestion in your description that the party is being held to advance the interests of the state, and in fact the state agency involved does not officially arrange or sponsor the party at all.2
In order for the state to be liable for the tortious actions of its employees, the employee must be found to be acting in furtherance of the state's business at the time the action occurred. Levitz v. Jewish Home for the Aged, Inc., 156 Conn. 193, 195 (1968); Gutierrez v. Thorne, 13 Conn.App. 493, 498 (1988).
A master is liable only for those torts of his servant which are done with a view of furthering his master's business within the field of this employment--for those which have for their purpose the execution of the master's orders or the doing of the work assigned to him to do.
Brown v. Housing Authority, 23 Conn.App. 624, 628 (1990) (internal citations and quotation marks omitted).
In the case of the holiday party, it is unlikely that any actions engaged in by state employees while attending or after leaving the party could be seen as furthering the state's business in any but the most tangential way. The fact that the incidents may occur during work hours while the employee is being paid his salary by the state, or at a party which his employer permitted, but did not require, him to attend, does not transform fundamentally private conduct into the performance of work related duties. " 'In the course of his employment' means while engaged in the service of the master, and it is not synonymous with the phrase 'during the period covered by his employment' " Levitz v. Jewish Home for the Aged, Inc., supra, 156 Conn. at 198. See also, Brown v. Housing Authority, supra, 23 Conn.App. at 628; Gutierrez v. Thorne, supra, 13 Conn.App. at 499.
Consequently, in the absence of some special circumstance not contained in your factual scenario, it is unlikely that the state would be liable for any ordinary "incidents arising at, during or after the event." We caution, however, that the determination of what constitutes scope of employment is largely fact-based, and given a different factual predicate, the conclusion could well be different.
It should be noted here that, in the workers' compensation context, the legislature has recently enacted legislation to clarify that a compensable personal injury does not include "an injury to an employer which results from his voluntary participation in any activity the major purpose of which is social or recreational, including, but not limited to, athletic events, parties and picnics, whether or not the employer pays some or all of the cost of such activity." P.A. No. 93-228, Section 1, subsection 16(B), amending Conn.Gen.Stat. § 31-275.
As regards your specific concern over "the consumption of alcohol products at any events which may lead to or result in an automobile accident occurring after the event," it is similarly unlikely, for the reasons already discussed, that there would be any liability which could be imputed to the state. As you have described the circumstances, the state agency is not a sponsor or arranger of the event, and does not provide liquor to the attendees. We assume that individual employees purchase such liquor as they wish directly from the private facility, and that the state agency has no role in the provision of this alcohol. We also assume that the employee is not driving a state car at the time the hypothetical accident occurs. Under these circumstances, it is unlikely that the state would be held liable for the actions of its employees occurring after the event.
In the first place, as discussed, the actions in purchasing and drinking the alcohol would not have occurred within the scope of employment. Further, since the state has played no role in arranging or sponsoring the event or in providing the alcohol, it is unlikely that it could be held directly liable for the consequences of an employee's private consumption of alcohol. This situation is unlike the situation encountered in Merhi v. Becker, 164 Conn. 516 (1973), in which a union was found liable for injuries sustained when a member who became intoxicated at a picnic sponsored by the union drove his car into an area of picnickers and injured the plaintiff. In Merhi, the union had planned and sponsored the picnic and provided union members and guests with "all food and beer they desired," for an admission price. The court found that the union had assumed the duty to police the crowd in view of the alcoholic beverages it provided, and that the driver's intoxication had become evident before he caused the accident. Under your factual scenario, by contrast, the state agency does not arrange or sponsor the event, does not provide alcohol to the attendees, and does not assume the obligation of providing security for the event. Under these circumstances, it is doubtful that liability would attach to the state if an accident occurred, because the state in your circumstances would be neither a vendor of the alcohol nor a social host providing alcohol to guests.3
As for commercial vendors of alcohol, they may be liable under the terms of the Dram Shop Act for the negligent sale of alcohol to an intoxicated person who thereafter injures another as a result of such intoxication. Conn.Gen.Stat. § 30-102. As recently as 1990, our Supreme Court has declared that this is the extent of vendor liability for negligence in this area. Quinnett v. Newman, 213 Conn. 343, 347-48 (1990). Although the private facility where the party is held and which sells the alcohol to the employees attending would likely fall under the provisions of the Dram Shop Act, the state agency in your fact pattern would not.
It is of course impossible to consider every fact pattern that could occur. It is always possible that a set of circumstances could arise that could lead to the imposition of liability on the state, but such facts have not been presented in your letter. As noted earlier, under § 4-165, the state would not be liable for the conduct of an employee that is wanton, reckless or malicious. Wanton misconduct is " 'such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the actions.' " Markey v. Santangelo, 195 Conn. 76, 78 (1985), quoting Bordonaro v. Senk, 109 Conn. 428, 431 (1929). "Recklessness is a state of consciousness with reference to the consequences of one's acts. It requires a conscious choice of a course of action either with knowledge of serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ... than that which is necessary to make his conduct negligent." Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 450-51 (1969) (internal citations and quotations marks omitted). " 'A wilful or malicious injury is one caused by design ... Wilfulness and malice alike import intent ... [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances.' Sharkey v. Skilton, 83 Conn. 503, 507-508, 77 A. 950 (1910)." Markey v. Santangelo, 195 Conn. at 78.
If such conduct on the part of an employee caused injury, the resulting action would be a private one against the individual, and not an action against the state under the terms of § 4-165. Again, of course, it is always possible that a set of circumstances could arise that would lead to a different conclusion.
A final caveat is necessary, however. The law in the area of liability for injuries caused by the consumption of alcohol is currently in flux. We cannot, therefore, predict with any degree of confidence how the law may evolve in this area in the future.
We hope this answers your questions.
Very truly yours,
Carolyn K. Querijero
Assistant Attorney General
1 Any claim brought pursuant to § 4-165 must be brought before the Claims Commissioner pursuant to the provisions of Chapter 54 of the Connecticut General Statutes.
2 Although you do not refer to it in your letter, we note that various collective bargaining agreements between the state and state employee unions contain sections providing for time off with pay to attend a holiday party. For example, the current contract between the State and the Administrative and Residual Employees Union Local 4200--AFT/CSFT, AFL--CIO, contains the following provision:
Memorandum of Understanding--III Christmas Party/Picnic
This will serve to clarify our understanding that for the life of the current contract, employees of the A & R bargaining unit will continue to be eligible to receive one-half day off with pay to attend one (1) annual picnic and/or one (1) Christmas Party. (Emphasis added).
3 The Connecticut Supreme Court has held that a social host or other purveyor of alcohol may be liable for injuries resulting from serving alcohol to minors. Ely v. Murphy, 207 Conn. 88 (1988). In your scenario, the state agency is not the provider of alcohol in any capacity, and at any rate, presumably the holiday party would not involve minors.