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Mulvihill v. Union Oil Co. et al (10/8/93), 859 P 2d 1310
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to permanent
THE SUPREME COURT OF THE STATE OF ALASKA
MARY E. MULVIHILL, Personal ) Supreme Court
Representative of the Estate ) File No. S-5303
of JIMMIE DUWAYNE MULVIHILL, )
Deceased; SUSAN G. ALTMAN, )
Personal representative of )
the Estate of BRUCE ALLEN )
ALTMAN, Deceased; and )
MAYRENE E. SHAWVER, )
) Superior Court File
v. ) No. 3KN-89-964 CI
UNION OIL CO. OF CALIFORNIA, ) O P I N I O N
dba UNOCAL CHEMICALS DIVISION,) [No. 4009 - October 8, 1993]
a corporate entity; KENAI )
MERIT INN CORPORATION, a )
corporate entity; CITY OF )
SOLDOTNA, a Municipal )
corporation; CENTRAL )
PENINSULA SPORTS CENTER RINK, )
INC., an Alaskan Corporation; )
MICKI E. KOBYLK, dba THE )
NIGHTWATCH, INC.; and BRAD )
FRATUS, Individually, )
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Jonathan H. Link, Judge.
Appearances: Laurel J. Peterson, Anchorage,
for Appellants. Stephen M. Ellis and Susan
Orlansky, Delaney, Wiles, Hayes, Reitman &
Brubaker, Inc., Anchorage, for Appellees.
Before: Rabinowitz, Burke, Matthews and
Compton, Justices. [Moore, Chief Justice,
On December 4, 1987, Union Oil Company of California
("Unocal") sponsored its annual Christmas party for its Alaskan
employees, their spouses and/or friends. The party was held at
the Central Peninsula Sports Center ("Sports Center") in
Soldotna, Alaska. Unocal contracted with Kenai Merit Inn to
cater the event. Kenai Merit Inn agreed to provide all services
associated with the party, including set-up and clean-up,
cocktail service, hors d'oeuvres, a buffet dinner, floral
arrangements and live entertainment.
In order to serve alcohol at the party, Kenai Merit Inn
obtained a "Caterer's Permit"from the Alaska Alcoholic Beverage
Control Board. As guests arrived, they were provided with
tickets for three drinks. Additional drinks were available on a
cash basis. One carafe of wine was provided during dinner for
every six to eight people. The carafes were placed on the table
after the salads were served; they were not refilled.
Brad Frates, a Unocal mechanical engineer, attended the
party with his wife, Melissa. The Frates sat at the same table
as Tony LeMay, another Unocal employee. Shortly after midnight,
the Frates decided to leave the party and go to a local tavern,
the Nightwatch, with David Rice, a Unocal employee, and his wife.
The Nightwatch is about two miles from the Sports Center.
LeMay saw the couples leaving and asked if he could
join them. LeMay accompanied the Frates in their vehicle to the
Nightwatch. Brad Frates suggested this arrangement because he
thought LeMay was "somewhat intoxicated,"although LeMay was not
"stumbling over himself or drooling." Two other Unocal employees
asked Frates to make sure that LeMay was not driving.
The group arrived at the Nightwatch between 12:30 and
1:00 a.m. Frates and Rice each drank a beer; LeMay drank two and
a half beers. They left between 1:30 and 2:00 a.m. The Frates
drove LeMay back to the Sports Center. From there, Brad Frates
drove LeMay home in LeMay's vehicle, while Melissa Frates
followed in the Frates' vehicle. The trip to LeMay's residence
in Kenai took about 15 minutes.
During the trip, LeMay expressed a desire to drive to
Anchorage to see his fianc. Frates told LeMay to get some sleep
and go to Anchorage in the morning. LeMay eventually assured
Frates that he would do this. Upon arriving at LeMay's residence,
Frates gave LeMay his keys back. Before they left, Brad and
Melissa Frates watched LeMay go up the stairs and open his
Later that morning, Lemay left his residence and drove
toward Anchorage. Shortly after 4:00 a.m., at Mile 48.8 on the
Seward Highway, LeMay fell asleep at the wheel, crossed the
center line, and struck a vehicle driven by Jimmie Mulvihill.
LeMay, Mulvihill, and Mulvihill's front seat passenger, Bruce
Altman, were killed in the crash. The other passenger in
Mulvihill's vehicle, Mayrene Shawver, was injured but survived.
LeMay had a blood alcohol level of .127 at the time of the
Mayrene Shawver and the personal representatives of the
estates of Jimmie Mulvihill and Bruce Altman1 sued Unocal, the
Frates, The Nightwatch, Kenai Merit Inn, and the Sports Center.
This appeal only concerns the suits against Unocal and Brad
Frates. Unocal and Brad Frates moved for and were granted summary
judgment on all issues. Mulvihill appeals. We affirm.
Unocal, as a social host, owed no legal duty to
Mulvihill. Alaska Statute 04.21.020 states, in part,
A person who provides alcoholic
beverages to another person may not be held
civilly liable for injuries resulting from
the intoxication of that person unless the
person who provides the alcoholic beverages
holds a license authorized under AS 04.11.080-
04.11.220, or is an agent or employee of such
a licensee and
(1) the alcoholic beverages are
provided to a person under the age of 21
years . . .; or
(2) the alcoholic beverages are
provided to a drunken person . . . .
Since Unocal did not hold a liquor license, it is not liable as a
social host for injuries resulting from LeMay's intoxication.2
See Gordon v. Alaska Pacific Bancorporation, 753 P.2d 721, 723
(Alaska 1988) (stating that Alaska Statute 04.21.020 "exempts
from civil liability a person who does not hold a liquor license
who furnishes liquor to an intoxicated person who, as a result of
his intoxication, injures a third party.").
Mulvihill attempts to circumvent this
conclusion by arguing that Unocal, if not
liable as a host, might be liable as the
employer of an intoxicated person who caused
injuries. This argument fails for several
reasons. First, Mulvihill has no colorable
claim under the doctrine of respondeat
superior. In Fruit v. Schreiner, 502 P.2d
133, 139-40 (Alaska 1972), we examined the
rationales behind respondeat superior, noting
two theories "which carry the greatest weight
in contemporary legal thought": the
"control" theory which finds liability
whenever the act of the employee was
committed with the implied authority,
acquiescence or subsequent ratification of
the employer, and the 'enterprise' theory
which finds liability whenever the enterprise
of the employer would have benefitted by the
context of the act of the employee but for
the unfortunate injury.
Id. However far these theories are stretched, they cannot
encompass LeMay's drive to Anchorage to see his fianc.
Second, it would be unwise and unfair to create what
amounts to an exception to Alaska Statute 04.21.020 by holding
employers to a different liability standard than other social
hosts. Other courts which have considered the issue have refused
to hold employers liable where other social hosts would not be.
See, e.g., Thies v. Cooper, 753 P.2d 1280, 1284 (Kan. 1988)
(noting that the majority of jurisdictions have refused to impose
liability on employers for serving liquor to employees who then
injure third persons); Meany v. Newell, 367 N.W.2d 472, 473
(Minn. 1985) (holding that an employer is not liable for injuries
resulting from acts of an intoxicated employee even though the
employer served the employee liquor at a Christmas party at the
workplace during normal working hours); Bruce v. Chas Roberts Air
Conditioning, Inc., 801 P.2d 456, 462-63 (Ariz. App. 1990)
(holding that an employer does not have a legal duty to protect
third persons from injuries caused by an employee who leaves his
employer's business in an intoxicated condition).
We consider it significant that when LeMay became
visibly intoxicated two Unocal employees told Frates to make sure
that LeMay was not driving. This would be a more difficult case
if they had allowed LeMay to drive home from the party knowing he
was visibly intoxicated. But given the employees' conscientious
attempt to insure that LeMay did not drive, we decline to hold
Unocal liable for Mulvihill's injuries. As another court,
dealing with similar facts, so aptly stated:
To hold otherwise would practically
impose a duty upon [the employer] not only of
getting [the employee] safely home, but also
of tucking him in bed, locking his bedroom
door, and securing the keys to his truck, or
of setting up an all-night vigil in swing
shifts to make sure he didn't leave.
Southern Bell Tel. & Telegraph v. Altman, 359 S.E.2d 385, 386
(Ga. App. 1987) (holding that an employer is not liable for
injuries caused by an employee who became intoxicated at employer-
sponsored banquet; co-workers took employee for coffee, drove him
home, then watched him walk to his front door).
By agreeing to drive LeMay home, Frates became a
"volunteer." We rely on Restatement (Second) of Torts 324A
(1965) to determine the nature of a volunteer's duty, and the
extent of his liability for a negligent undertaking.3 See, e.g.,
City of Kotzebue v. McLean, 702 P.2d 1309, 1313 n.4 (Alaska
1985). This section states, in part:
One who undertakes, gratuitously or for
consideration, to render services to another
which he should recognize as necessary for
the protection of a third person or his
things, is subject to liability to the third
person for physical harm resulting from his
failure to exercise reasonable care to
protect his undertaking, if
(a) his failure to exercise reasonable
care increases the risk of such harm.
Frates only agreed to deliver LeMay home. He and his wife
performed this service, waiting until LeMay opened his front door
before they left him. In so doing, Frates did all he could do;
he completely and conscientiously discharged his duty. Since
reasonable people could not differ on the nature and extent of
this voluntarily undertaken duty, summary judgment was properly
granted. Estate of Breitenfeld, 755 P.2d 1099, 1102-03 (Alaska
Contrary to Mulvihill's assertion, there is nothing in
the record to indicate that Frates agreed to perform additional
services. Specifically, Frates did not agree to insure that
LeMay did not drink any more beer. Further, implying such a duty
would be poor policy, as it would jeopardize the "designated
driver" movement. If Frates were held liable for Mulvihill's
injuries because he allowed LeMay to drink two beers before he
drove LeMay home, then every designated driver who agreed to
drive a friend home after a night of drinking would risk
liability if that friend chose to drive after the designated
driver left. Such a result would undermine society's well-
founded desire to encourage sober people to volunteer to drive
their intoxicated friends home. As one court has said, "persons
who otherwise have no liability should not be discouraged from
making reasonable efforts to remove an obviously intoxicated
driver from behind the wheel." Prelvitz v. Milsop, 831 F.2d 806,
810 (8th Cir. 1987).
1. Appellants will be designated collectively as
2. Mulvihill attempts to avoid AS 04.21.020 by arguing that,
since it is undisputed that Kenai Merit Inn obtained the beverage
dispensary permit for Unocal's benefit, "Unocal was the effective
holder who received the actual benefits of the permit." This
argument is without merit because it twice ignores the plain
language of the statute. First, AS 04.21.020 extends potential
liability only to the agents or employees of the licensee.
Unocal was neither. Second, a person may only be held liable
under AS 04.21.020 if he holds a license under AS 04.11.080-.220.
Kenai Merit Inn obtained a "Caterer's Permit" pursuant to AS
04.11.230. Thus, even accepting Mulvihill's novel theory that
Unocal was the "effective holder"of the permit, no liability
3. Mulvihill also relies on Restatement (Second) of Torts,
sections 323 and 319. Neither section applies to this case.
Section 323 would apply only if Frates' liability to LeMay were
at issue. Further, section 319 would apply only if the accident
occurred while LeMay was in Frates' control. Since the accident
occurred after Frates dropped LeMay off, section 319 is not
relevant. See, e.g., Leake v. Cain, 720 P.2d 152, 161 (Colo.
1986) (holding police officers who took temporary charge of a
drunken youth at a party owed duty to the public under 319
while youth was actually in their custody, but owed no duty to
the public after releasing him to his brother).
4. Mulvihill frequently asserts that the scope and breach of
any duties Frates may have assumed is a jury question. In this
case, however, the nature and extent of the act undertaken, which
is a question of fact, is not in dispute. What is in dispute is
the "precise nature and extent"of Frates' duty to act. This is
a question of law which can be decided at the summary judgment
stage. See Estate of Breitenfeld, 755 P.2d 1099 (Alaska 1988).